IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF OHIO

EASTERN DIVISION

Garri Ambartsoumov, 

Petitioner, 

v. Case No. 2:12-cv-345

 JUDGE MICHAEL H. WATSON

Warden, Chillicothe Correctional Magistrate Judge Kemp

Institution,

Respondent. 

REPORT AND RECOMMENDATION

Petitioner, a state prisoner, has filed a petition for a writ of habeas corpus

pursuant to 28 U.S.C. §2254. This matter is before the Court on that petition,

respondent's return of writ, the exhibits attached to the return, and the exhibits attached

to the motion to dismiss. Petitioner did not file a traverse. Also before the Court is

Petitioner’s motion for leave to amend. For the reasons that follow, the Magistrate Judge

RECOMMENDS that petitioner's claims be DISMISSED and that the motion for leave to

amend be DENIED.

I. PROCEDURAL HISTORY

On July 11, 2008, a Franklin County, Ohio grand jury returned a two-count

indictment against petitioner and his co-defendant charging felonious assault and

attempted murder. Motion to Dismiss (Doc. 8), Exhibit 1. Petitioner pleaded not guilty

and was tried by a jury jointly with his co-defendant. On September 3, 2009, the jury

convicted him of felonious assault but could not reach a verdict on the attempted

murder charge. Id., Exhibits 7 and 8. In a judgment entry filed on October 28, 2009, the

trial judge sentenced petitioner to a prison term of eight years. Id., Exhibit 9. 

Petitioner, represented on appeal by his trial counsel, timely appealed his

conviction to the Court of Appeals for the Tenth Appellate District. He raised seven

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assignments of error, as follows:

1. The trial court improperly excluded defense witnesses under

Evidence Rules 404 and 608 that rebutted the State's

characterizations of an alleged victims [sic] good character, thereby

violating Appellant's right to present a meaningful defense as

guaranteed by the Compulsory Process Clause of the Sixth Amendment,

the Due Process clause of the Fourteenth Amendment to the United States

Constitution, and Article I, Section 10 of the Ohio Constitution. (Tr. Trn.

Vol., IV, Pg. 186-187)

2. The trial court improperly quashed Appellant's subpoena of an [sic]

non-confidential criminal investigation that rebutted the State's

characterizations of an alleged victims [sic] good character, thereby

violating Appellant's right to present a full defense as guaranteed

by the Compulsory Process Clause of the Sixth Amendment, the

Due Process clause of the Fourteenth Amendment to the United

States Constitution, and Article I, Section 10 of the Ohio

Constitution. (Tr. Trn. Vol. I, Pg. 86)

3. The trial court improperly quashed Appellant's subpoena of an [sic]

non-confidential criminal investigation that rebutted the State's

characterizations of an alleged victims [sic] good character, thereby

violating the Due Process clause of the Fourteenth Amendment

and comparable provisions of the Ohio Constitution. (Tr. Trn. Vol. I,

Pg. 86)

4. The trial court improperly implied in the presence of the jury that

Appellant's co-defendant should testify at trial, thereby violating

Appellant's Sixth Amendment right to a trial by jury, his right to Due

Process under the Fourteenth Amendment and comparable

provisions of the Ohio Constitution. (Tr. Trn. Vol., IV, Pg. 82)

5. The court improperly excluded evidence that rebutted Arut

Koulian's assertions that his motive for leaving town was due to

threats from Appellant's family with evidence of his financial

difficulty, thereby violating Appellant's right to present a meaningful

defense as guaranteed by the Compulsory Process Clause of the

Sixth Amendment, the Due Process clause of the Fourteenth

Amendment to the United States Constitution, and Article I, Section

10 of the Ohio Constitution. (Tr. Trn. Vol. I, Pg. 225-226)

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6. The trial court erred in overruling Appellant's motion for a mistrial

when the state elicited testimony from two Columbus Police

Officers that Appellant did not tell them how he cut his hand and

that he did not tell them he was a victim of an assault and thus

commenting on his constitutional right to remain silent, thereby

violating Appellant's Fifth Amendment right to remain silent, and his

right to Due Process under the Fourteenth Amendment. (Tr. Trn.

Vol. II, Pg.13)

7. The trial court violated Appellant's right to Due Process as

Guaranteed by the Fourteenth Amendment to the United States

Constitution and Article I, Section 10 of the Ohio Constitution by

entering verdicts of Guilty, as the jury's verdict was against the

manifest weight of the evidence. (Tr. Trn. Vol. V, Pg. 132)

Motion to Dismiss, Exhibits 12 and 13. In a decision dated December 21, 2010, the Tenth

District Court of Appeals overruled the assignments of error and affirmed Petitioner's

conviction. State v. Ambartsoumov, 2010 WL 5385439 (Franklin Co. App. December 21,

2010). 

On February 2, 2011, Petitioner, represented by new counsel, filed an appeal with

the Ohio Supreme Court. In his memorandum in support of jurisdiction, he raised six

propositions of law, as follows:

1. Appellant's right to present a defense was violated when the trial

court refused to permit the defense to refute assertions by one of

the State's key witnesses that he was an upstanding community

leader and had never been involved in illicit activity.

2. Appellant's right to present a defense was violated when the trial

court quashed Appellant's subpoena of a non-confidential criminal

investigation that rebutted the State's characterizations of a witness'

good character.

3. When the Appellant's subpoena of a non-confidential criminal

investigation rebutting the State's characterizations of a witness'

good character was quashed by the trial court it effectively denied

Appellant the opportunity to prove that the Prosecution violated its

disclosure duties under Crim. R.16 and Brady v. Maryland, 373 U.S.

83 (1963).

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4. Appellant's right to present a defense was violated when the trial

court refuse to permit the defendant to put on evidence concerning

the State's witness' motive for fleeing the country.

5. A defendant's post arrest silence cannot be used as substantive

evidence against him at trial. Miranda v. Arizona, 384 U.S. 436, 468

n. 37 (1966), followed.

6. In reviewing claims of whether a verdict is against the manifest

weight of the evidence it is not relevant whether the jury is in the

best position to consider inconsistencies in testimony because an

appellate court sits as the thirteenth juror and may disagree with

the fact-finder's resolution of the conflicting testimony. State v.Wilson, 113

Ohio St.3d 382, 2007-Ohio-2202, ¶25 followed .

On April 20, 2011, the Ohio Supreme Court dismissed the appeal as not involving any

substantial constitutional question. Motion to Dismiss, Exhibit 20.

On March 17, 2011, Petitioner filed an application to reopen his direct appeal

pursuant to Appellate Rule 26(B). In his application, he alleged that his appellate

counsel was ineffective for failing to raise the following assignments of error:

1. Defense counsel rendered ineffective assistance when they failed

to object to the admission of evidence concerning victim Tigran

Safaryan's character during the prosecution's case-in-chief where

the defendant had not yet put on his case or otherwise put on any

evidence concerning the victim's character in violation of

defendant's rights under the Fifth, Sixth, and Fourteenth

Amendments to the United States Constitution and corresponding

provisions of the Ohio Constitution. (TR. Vol. 1, pp.37-41).

2. The trial court erred when it allowed victim Safaryan to testify over

objection why he was "cautious" of defendant Ambartsoumov in

violation of defendant's rights under the Fifth, Sixth, and Fourteenth

Amendments to the United States Constitution and corresponding

provisions of the Ohio Constitution. (TR. Vol. 1, p. 71).

3. The trial court erred when it permitted Safaryan's cousin, Sabina

Shvets, to testify over objection as to the reasons why Safaryan

was cautious of Ambartsoumov in violation of defendant's rights

under the Fifth, Sixth, and Fourteenth Amendments to the United

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States Constitution and corresponding provisions of the Ohio

Constitution. (TR. Vol. 3, pp. 77-95).

4. The trial court erred to the prejudice of the defendants when it used

the wrong standard in deciding the discoverability of materials

sought by the defense under Crim. R.16(B)(1)(f) in violation of

defendant's rights under the Fifth, Sixth, and Fourteenth

Amendments to the United States Constitution and corresponding

provisions of the Ohio Constitution. (TR. Vol. 1, pp. 100-101).

5. Defense counsel rendered ineffective assistance when they failed

to object to the admission of evidence of the victim Arut Khoulian's

character during the prosecution's case in chief where the

defendant had not yet put on his case or otherwise put on any

evidence concerning the victim's character in violation of

defendant's rights under the Fifth, Sixth, and Fourteenth

Amendments to the United States Constitution and corresponding

provisions of the Ohio Constitution. (TR. Vol. 1, pp.119-122).

6. Defense counsel rendered ineffective assistance when they failed

to cross-examine Tigran Safaryan about inconsistent statements he

made to medical personnel concerning how the confrontation

started that resulted in his wound in violation of defendant's rights

under the Fifth, Sixth, and Fourteenth Amendments to the United

States Constitution and corresponding provisions of the Ohio

Constitution. (TR. Vol. 1, pp.105-113).

7. The trial court erred when it overruled the defense motion for a

continuance to subpoena Tigran Safaryan in order to question him

about statement he made to emergency room personnel in violation

of defendant's rights under the Fifth, Sixth, and Fourteenth

Amendments to the United States Constitution and corresponding

provisions of the Ohio Constitution. (TR. Vol. 4, p. 29).

8. The trial court erred in refusing to allow the defense to play a video

tape recording of Ambartsoumov's statement to the police in

violation of defendant's rights under the Fifth, Sixth, and Fourteenth

Amendments to the United States Constitution and corresponding

provisions of the Ohio Constitution. (TR. Vol. 4, p. 56).

9. Trial counsel rendered ineffective assistance when they failed to

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introduce during cross-examination of Detective Siniff portions of the

interview with Ambartsoumov in violation of defendant's rights

under the Fifth, Sixth, and Fourteenth Amendments to the United

States Constitution and corresponding provisions of the Ohio

Constitution. (TR. Vol. 2, pp.160-180).

10. Trial counsel rendered ineffective assistance when they failed to

introduce, pursuant to Evid.R.801(D)(1)(b), Ambartsoumov's

statement to the Detective Siniff indicating how he was cut the night

of the incident in order to rebut the prosecution's charge against

Ambartsoumov that he never explained to the police how he got cut

during the incident in violation of defendant's rights under the Fifth,

Sixth, and Fourteenth Amendments to the United States

Constitution and corresponding provisions of the Ohio Constitution.

(TR. Vol. 4, pp.56).

On December 6, 2011, the Tenth District Court of Appeals denied the application

to re-open the appeal. Motion to Dismiss, Exhibits 24 and 25. Petitioner appealed this

decision to the Ohio Supreme Court. Id., Exhibit 26. On March 21, 2012, the Ohio

Supreme Court dismissed the appeal as not involving any substantial constitutional

question. Id., Exhibit 29. 

On April 18, 2012, Petitioner filed a motion for leave to file a delayed motion for

a new trial in the Common Pleas Court of Franklin County, Ohio. Motion to Dismiss,

Exhibit 30. On September 12, 2012, the trial court denied the motion, as amended, as

untimely. Id., Exhibit 35. On October 10, 2012, Petitioner filed an appeal with the Tenth

District Court of Appeals challenging the trial court's denial of this motion. Id., Exhibits

36 and 38. On July 11, 2013, the Court of Appeals affirmed the denial of leave to file a

delayed motion for a new trial. (Doc. 18). By entry dated December 4, 2013, the

Supreme Court of Ohio declined to accept jurisdiction of the appeal. Id. 

Also on April 18, 2012, Petitioner, through counsel, timely presented his petition

for a writ of habeas corpus to this Court. In his petition, he raised the following

grounds for relief, stated here exactly as they appear in the petition:

Ground One:

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Garri Ambartsoumov's right to present a defense was violated when the

trial court refused to permit the defense to refute assertions by one of the

State's key witnesses that he was an upstanding community leader and

had never been involved in illicit activity. The state court resolution of

this ground was an unreasonable application of or contrary to United

States Supreme Court precedent.

Ground Two:

Garri Ambartsoumov's right to present a defense was violated when the

trial court quashed his subpoena of records concerning a non-confidential

criminal investigation which rebutted the State's characterizations of a

witness' good character. The state court resolution of this ground was an

unreasonable application of or contrary to United States Supreme Court

precedent.

Ground Three:

When Garri Ambartsoumov's subpoena of a non-confidential criminal

investigation rebutting the State's characterizations of a witness' good

character was quashed by the trial court it effectively denied

Ambartsoumov the opportunity to prove that the Prosecution violated its

disclosure duties under Brady v. Maryland, 373 U.S. 83 (1963). The state

court resolution of this ground was an unreasonable application of or

contrary to United States Supreme Court precedent.

Ground Four:

Garri Ambartsoumov's right to present a defense was violated when the

trial court refused to permit the defendant to put on evidence concerning

the State's witness' motive for fleeing the country. The state court

resolution of this ground was an unreasonable application of or contrary

to United States Supreme Court precedent.

Ground Five:

Garri Ambartsoumov was denied due process and a fair trial when his

post arrest silence was used as substantive evidence against him at trial. 

The state court adjudication of this claim was an unreasonable application

of or contrary to United States Supreme Court precedent.

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Ground Six:

Garri Ambartsoumov was denied effective assistance of appellate counsel

when his counsel failed to present the following issues on direct appeal:

1. Defense Counsel rendered ineffective assistance when they

failed to object to the admission of evidence concerning victim Tigran

Safaryan's character during the prosecution's case-in-chief where the

defendant had not yet put on his case or otherwise put on any evidence

concerning the victim's character in violation of defendant's rights under

the Fifth, Sixth, and Fourteenth Amendments to the United States

Constitution and corresponding provisions of the Ohio Constitution. (TR.

Vol. 1, pp. 37-41).

2. The trial court erred when it allowed victim Safaryan to

testify over objection why he was "cautious" of defendant Ambartsoumov

in violation of defendant's rights under the Fifth, Sixth, and Fourteenth

Amendments to the United States Constitution and corresponding

provisions of the Ohio Constitution. (TR. Vol. 1, p. 71).

3. The trial court erred when it permitted Safaryan's cousin,

Sabina Shvets, to testify over objection as to the reasons why Safaryan was

cautious of Ambartsoumov in violation of defendants' rights under the

Fifth, Sixth, and Fourteenth Amendments to the United States

Constitution and corresponding provisions of the Ohio Constitution (TR.

Vol. 3, pp. 77-95).

4. The trial court erred to the prejudice of the defendants when

it used the wrong standard in deciding the discoverability of materials

sought by the defense under Crim.R. 16(B)(1)(f) in violation of defendant's

rights under the Fifth, Sixth, and Fourteenth Amendments to the United

States Constitution and corresponding provisions of the Ohio

Constitution. (TR. Vol. 1, pp. 100-101).

5. Defense Counsel rendered ineffective assistance when they

failed to object to the admission of evidence of the victim Arut Khoulian's

character during the prosecution's case in chief where the defedant had

not yet put on his case or otherwise any evidence concerning the victim's

character in violation of defendant's rights under the Fifth, Sixth, and

Fourteenth Amendments to the United States Constitution and

corresponding provisions of the Ohio Constitution. (TR. Vol. 1, pp.

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119-122).

6. Defense counsel rendered ineffective assistance when they

failed to cross-examine Tigran Safaryan about inconsistent statements he

made to medical personnel concerning how the confrontation started that

resulted in his wound in violation of defendant's rights under the Fifth,

Sixth, and Fourteenth Amendments to the United States Constitution. 

(TR. Vol. 1, pp. 105-113).

7. The trial court erred when it overruled the defense motion

for a continuance to subpoena Tigran Safaryan in order to question him

about statement he made to emergency room personnel in violation of

defendant's rights under the Fifth, Sixth, and Fourteenth Amendments to

the United States Constitution and corresponding provisions of the Ohio

Constitution. (TR. Vol. 4, p. 29).

8. The trial court erred in refusing to allow the defense to play

a video tape recording of Ambartsoumov's statement to the police in

violation of defendant's rights under the Fifth, Sixth, and Fourteenth

Amendments to the United States Constitution and corresponding

provisions of the Ohio Constitution. (TR. Vol. 4, p. 56).

9. Trial counsel rendered ineffective assistance when they

failed to introduce during cross-examination of Detective Siniff portions of

his interview with Ambartsoumov in violation of defendant's rights under

the Fifth, Sixth, and Fourteenth Amendments to the United States

Constitution and corresponding provisions of the Ohio Constitution. (TR.

Vol. 2, pp. 160-180).

10. Trial counsel rendered ineffective assistance when they

failed to introduce, pursuant to Evid.R. 801(D)(1)(b), Ambartsoumov's

statement to the Detective Siniff indicating how he was cut the night of the

incident in order to rebut the prosecution's charge against Ambartsoumov

that he never explained t the police how he got cut during the incident in

violation of defendant's rights under the Fifth, Sixth, and Fourteenth

Amendments to the United States Constitution and corresponding

provisions of the Ohio Constitution. (TR. Vol. 4, p. 56).

The state court adjudication of this claim was an unreasonable application

of or contrary to United States Supreme Court precedent.

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Ground Seven:

Garri Ambartsoumov was denied effective assistance of counsel

when his counsel failed to investigate and present testimonial evidence

that Alex Nercessian cut Arut Khoulian's neck and Armen Stepanyan cut

Tigran Safaryan's arm.

Respondent moved to dismiss the petition because Petitioner had failed to

exhaust state court remedies with respect to ground seven. (Doc. 8). On June 3, 2013,

Petitioner amended his petition, omitting ground seven. (Doc. 12). Ground seven is

now the focus of the motion for leave to amend (Doc. 17). 

II. FACTS

The facts of the underlying offense are stated in the state court of appeals'

opinion. This is how the state court of appeals described the events which led to the

filing of charges against Petitioner:

This case arose out of an incident on May 17, 2008, in which two

individuals, Tigran Safaryan and Arut Koulian, sustained knife wound

injuries outside a Columbus restaurant. On July 11, 2008, appellant and a

co-defendant, Eldar Veliev, were each indicted on one count of felonious

assault, in violation of R.C. 2903.11. On March 24, 2009, appellant and

Veliev were also indicted on one count each of attempted murder, in

violation of R.C. 2923.02 and 2903.02. The trial court subsequently granted

the state's motion for joinder of appellant's trial with that of co-defendant

Veliev, and the cases came for trial before a jury beginning August 24,

2009.

The first witness for the state was Safaryan, who was born in Azerbaijan

and came to the United States at age 18. Safaryan owns seven area

businesses, including three auto body shops and an auto glass company,

employing over 60 individuals. Many of his customers are from Russia

and the Armenian community. Safaryan and appellant were acquainted

with each other, having met 12 years prior to the incident; appellant, a

former hairdresser who now owns a body shop, was at one time

Safaryan's barber. Safaryan is also acquainted with co-defendant Veliev. 

Safaryan gave the following account of the events on May 17, 2008. Earlier

that day, Alex Nercessian, a friend of Safaryan, made dinner reservations

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at Hawa Russia, a Russian club located on East Dublin Granville Road,

Columbus. Safaryan and a friend, Koulian, met Nercessian at the

restaurant. Safaryan knew other individuals in attendance at the club that

night, including Alexander Dashovsky. Appellant and Veliev were also at

the restaurant.

Safaryan received a phone call shortly after arriving at the restaurant, and

he stepped outside to a patio area to continue the conversation. Other

individuals were also outside on the patio. As Safaryan finished the phone

call, appellant, Veliev, and two other individuals came outside. Appellant

started walking toward Safaryan, and Safaryan noticed "something black

in his hand * * * like [a] knife." (Tr. Vol.I, 50.) Safaryan said to appellant:

"[W]hat do you say to my cousin." (Tr. Vol.I, 50.) Appellant then slashed at

Safaryan with a knife, striking toward Safaryan's upper body. Safaryan

tried to block the attack with his right arm, but the knife cut across his

right forearm. Just before the attack, Safaryan heard appellant say "kill" in

Russian. (Tr. Vol.I, 80.) After being cut, Safaryan struck appellant "so I

could get * * * out of the railing." (Tr. Vol.I, 52.) Appellant fell to one knee,

and Safaryan tried to get away from the porch area.

At the time Safaryan first saw appellant come outside the restaurant,

codefendant Veliev was walking behind appellant. Safaryan's friend,

Koulian, was also outside at this time, standing in the vicinity of Veliev.

During the incident, Safaryan observed a silver knife in Veliev's hand, and

then saw "blood all over" Koulian's shirt. (Tr. Vol.I, 55.)

Following the altercation, Safaryan was assisted to the parking lot by

Dashovsky, and someone placed a 911 call for an ambulance. Police

officers arrived a short time later and ordered appellant to "stop and get

on his knees," but "he wouldn't do that." (Tr. Vol.I, 60.) Safaryan testified

that appellant was speaking in Russian, threatening him and his family;

appellant "was yelling at us and said he would kill us." (Tr. Vol.I, 60.)

Safaryan and Koulian were subsequently transported by ambulance to

Grant Hospital. Safaryan was treated for a knife wound to his right arm of

approximately ten inches in length, requiring stitches and staples.

At trial, Safaryan identified appellant as his assailant. Safaryan testified

that appellant had threatened him several months before the incident.

Safaryan learned of the threat from his cousin, Sabina Shvets, during a

phone conversation. Safaryan later spoke to his attorney about the threats,

but his attorney "told me to just let it go." (Tr. Vol.I, 74.)

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On cross-examination, Safaryan stated he was aware that Nercessian had

served five years in prison. Safaryan denied being in business with

Nercessian. Safaryan further denied engaging in auto theft, trafficking in

stolen vehicles, extortion or falsifying vehicle identification number tags.

Koulian, age 28, is formerly from Russia, and moved to Columbus in 2001.

In May 2008, Koulian was self-employed as the owner of a jewelry store in

Gahanna. Koulian, who was at the Hawa Russia restaurant with Safaryan

and Nercessian on May 17, 2008, gave the following testimony regarding

the incident. A short time after arriving at the restaurant, Koulian went

outside to smoke. At first he did not see Safaryan, but Koulian then

noticed a commotion to his right. Koulian "heard the yelling and I saw a

knife pulled out, which Ty was struck on his right arm." (Tr. Vol.I, 129.)

Appellant "was threatening. Something along the lines I will kill you." (Tr.

Vol.I, 130.) Koulian described the knife in appellant's hand as

approximately five or six inches in length with a dark handle and blade.

Safaryan punched appellant and then retreated, and Koulian observed

appellant "getting up * * * to his feet with the knife in his right hand." (Tr.

Vol.I, 129.)

Koulian backed away from the scene, but another individual "was coming

towards me. And I raised my arms * * * and I said, hey, stop, whatever is

going on." (Tr. Vol.I, 129.) Koulian observed "something that resembled a

medical scalpel" in the man's hand. (Tr. Vol.I, 129.) The individual shoved

Koulian in the shoulder area; the man then pulled his hand back, and at

that moment Koulian "saw blood coming down like crazy from my neck."

(Tr. Vol.I, 130.) Someone pulled Koulian away, and Nercessian came

outside to assist him. Koulian later learned that his assailant was an

individual named "Eldar." At trial, Koulian identified co-defendant Eldar

Veliev as his assailant.

The wound to Koulian's neck area was eight inches in length. Koulian

experiences occasional numbness in the area of the wound, and he was

informed by doctors that some nerve endings had been damaged.

Following the incident, appellant's sister visited Koulian's jewelry store,

and she "basically told me * * * not to be dumb. I should be smarter than

that and I should just get out of it and I shouldn't continue with this." (Tr.

Vol.I, 180.) Koulian currently resides in Russia, and he "fled" the United

States in September of 2008 after receiving "a threatening phone call"

following his testimony during a grand jury proceeding. (Tr. Vol.I, 177.)

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The caller told him: "You will die tonight." (Tr. Vol.I, 177.) Koulian

immediately closed up his jewelry store and left the Columbus area; he

drove to the Russian consulate in New York in a car he had taken for a test

drive from a Columbus car dealership. After experiencing a delay in New

York in obtaining necessary paperwork, a friend assured Koulian he could

get the paperwork in California. Koulian traveled back to Ohio and then

took a bus from Columbus to California. A short time later, he flew from

Los Angeles to Russia. Koulian did not tell his wife or parents that he was

leaving. He acknowledged there are pending charges against him for

unauthorized use of the motor vehicle he drove to New York, and he

denied any intent to steal the vehicle. On cross-examination, Koulian

admitted he had been late in making rental payments on the leased

jewelry store premises and that he had received eviction notices from the

rental agency prior to leaving the country.

On the evening of May 17, 2008, Columbus Police Officer Matthew Ewing

was dispatched to the Hawa Russia restaurant regarding a reported

stabbing. When he arrived, Officer Ewing observed another officer

struggling with a white male, later identified as appellant. The individual

was "very loud, very boisterous." (Tr. Vol.II, 10.) The man was "very

angry," and was "looking back to a couple of individuals in the crowd."

(Tr. Vol.II, 10.) Officer Ewing noticed that the man was bleeding from a

cut to the right hand area near the thumb. The officer described the

wound as a "clean cut. It was a slit * * * on his right hand." (Tr. Vol.II, 13.)

Appellant was eventually subdued and placed in a medic wagon, and

Officer Ewing accompanied appellant to the hospital. Officer Ewing

testified that appellant "just basically ranted and raved about how he was

disrespected in the club or disrespected with his business or something."

(Tr. Vol.II, 14.) Appellant told the officer that he was an "important

person" who owned businesses and had a "lot of money." (Tr. Vol.II, 15.)

Columbus Police Officer Heath Graber was also dispatched to the Hawa

Russia restaurant on May 17, 2008. Appellant was placed in a medical

ambulance, and Officer Graber followed the ambulance to the hospital;

upon arrival, Officer Graber accompanied the medics and appellant inside

the hospital, and the officer noticed a deep cut to appellant's right thumb

area.

Dashovsky, age 24, was born in the former Soviet Union and came with

his family to the United States in 1989. Dashovsky is employed as a sales

manager at Safaryan's auto glass business, and he is acquainted with

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Koulian. Dashovsky has known appellant for a number of years; at one

time, appellant was Dashovsky's hairdresser. Dashovsky was also familiar

with Veliev, who works at appellant's body shop.

On the night of the incident, Dashovsky was at the Hawa Russia

restaurant for a birthday party. When he arrived, appellant and Veliev

were at the restaurant. Later, Safaryan and Koulian entered the restaurant.

At some point in the evening, Safaryan got up from his table and went

outside to smoke. Appellant then got up from his table and went to the

bathroom. Dashovsky went outside to smoke; as he was walking toward

the door, Dashovsky observed appellant pass a knife to Veliev. The knife

had a black handle and was "foldable." (Tr. Vol.II, 86.) Dashovsky

recognized the knife "from when Garri used to cut hair." (Tr. Vol.II, 86.)

As Dashovsky walked outside he observed Safaryan "walking away,

holding his arm." (Tr. Vol.II, 87.) Dashovsky then noticed that Safaryan

was bleeding from a cut. Safaryan's arm was "severely cut down to the

veins." (Tr. Vol.II, 87.) Dashovsky made a tourniquet out of a shirt for

Safaryan's arm. He then heard Koulian yelling "I got cut, I got cut." (Tr.

Vol.II, 87.) Koulian suffered a cut to the throat area, and Dashovsky ran to

the kitchen and grabbed some towels and blankets. Dashovsky turned his

attention to Safaryan "because I honestly didn't think Arut would make

it." (Tr. Vol.II, 88.) Dashovsky made a 911 call for help. Appellant and

Veliev went back inside the restaurant. Dashovsky did not observe either

appellant or Veliev being hit or punched during the incident. At trial, the

state played a recording of the 911 call placed by Dashovsky, in which he

told the dispatcher that one of the assailants was "Armenian descent, first

name Garri." (Tr. Vol.II, 96.)

Dmitry Semikin, who was at the Hawa Russia restaurant on May 17, 2008,

testified that he was standing outside the restaurant when he heard

screams. He observed approximately 10 to 15 individuals near the

entrance of the restaurant. Semikin saw a knife in appellant's hand, and

"Tigran's arm was already cut and he was holding it with another hand."

(Tr. Vol.III, 19.) He also "saw that Tigran punched Garri." (Tr. Vol.III, 19.)

Semikin observed Koulian "holding his neck, which was bleeding." (Tr.

Vol .III, 21.) Veliev was standing across from Koulian at the time. Semikin

went to help Koulian; Semikin later realized that he had also been cut.

When appellant was taken into custody by police he was making "[h]is

usual threats, that he will kill everybody and he will avenge everybody."

(Tr. Vol.III, 25.)

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Columbus Police Officer Mark Marstiller was dispatched to the scene that

evening and he attempted to locate witnesses. Although there were a

number of individuals at the restaurant, "there was no cooperation.

Nobody really wanted to be involved and talk to me specifically about

anything." (Tr. Vol.II, 110.)

Columbus Police Detective Glenn Siniff went to the hospital on the night

of the incident and spoke with Safaryan. He also interviewed appellant

that evening. The following day, Detective Siniff interviewed Koulian,

who named the individual that cut his throat. Koulian picked out Veliev's

picture from a photo array. Detective Siniff also spoke with Semikin, who

identified Veliev as being involved in the incident.

Shvets, age 20, is a cousin of Safaryan. In September 2007, Shvets was at a

Columbus restaurant when appellant approached her and asked where

she was from. Shvets responded that she was from Bakul, Azerbaijan.

Shvets told appellant that she was related to Safaryan. When appellant

heard Safaryan's name "he got mad and he started saying that he hates

him, that he's going to kill his son, his family." (Tr. Vol.III, 82.) After

appellant left, Shvets called Safaryan and asked him to come pick her up.

She was very upset at the time. Appellant once told Shvets: "I'm the king

of the city, and if I don't like someone, I'm going to kill the person." (Tr.

Vol.III, 84.)

Aydin Gasanov, appellant's father-in-law, was called as a witness by the

defense. Gasanov was at the Hawa Russia restaurant on the evening of

May 17, 2008, and gave the following account. During the evening,

appellant and Veliev got up from their table; a short time later, Safaryan,

Koulian, Nercessian, and several other individuals went outside to smoke.

Gasanov later heard someone screaming and he ran outside. Veliev was

lying on the floor and appellant "was on his knees, trying to get up. And

in those 9 or 10 people-I'm not sure how many exactly-they were beating

Garri and Eldar with their feet." (Tr. Vol.IV, 35-36.) Gasanov attempted to

stop the fight; appellant and Veliev eventually went back inside the

restaurant, and Gasanov followed them.

Appellant, age 45, testified on his own behalf. Appellant was born in

Bakul, Azerbaijan, part of the ex-Soviet Union, and he graduated from

National Beauty Academy after moving to the United States. Appellant,

who currently owns a body shop, has known Safaryan for 15 years; he has

known Veliev for 12 years.

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On May 17, 2008, appellant was invited to dinner at the Hawa Russia

restaurant by a friend, Dimitri Zubrich. Other friends and relatives of

appellant were also in attendance. Koulian, Safaryan, and Nercessian

subsequently arrived at the restaurant. That evening, appellant went to

the restroom and then went outside with Veliev to smoke. While they

were standing outside, Safaryan, Koulian, and Nercessian "started coming

closer." (Tr. Vol.IV, 68.) As the other men approached, "Ty says I want to

talk to you." (Tr. Vol.IV, 69.) Appellant testified that he told Safaryan that

he was with family and "I don't want any problems." (Tr. Vol.IV, 69.)

Safaryan then "smacked me twice. And I walked back and tried to go, and

he hit me." (Tr. Vol.IV, 69.) After being hit twice, appellant "hit [Safaryan]

back." (Tr. Vol.IV, 69.) Safaryan hit appellant a third time and appellant

fell down. When appellant fell down, he "tried to push this guy. I get * * *

cut very badly." (Tr. Vol.IV, 70.) Appellant's father-in-law walked outside

and started to push the other men, and appellant went back inside the

restaurant.

A short time later, when the police arrived, appellant refused a police

officer's order to get on his knees. Appellant told the officer to "cuff me"

instead. (Tr. Vol.IV, 72 .) The officer then used a Taser gun on him.

Appellant denied having a knife that evening or slashing Safaryan's arm.

He also denied observing a knife in Veliev's hand.

Zubrich, who invited appellant to the Hawa Russia restaurant on the

night of the events at issue, gave the following testimony. According to

Zubrich, "everybody knows that Tigran doesn't like Garri and has been

trying to get him for something." (Tr. Vol.IV, 151.) That evening, appellant

and Veliev went outside to smoke, and the individuals at the table where

Safaryan was seated got up and also went outside. Zubrich observed

Safaryan hit appellant. Zubrich did not want to get involved, so he went

back to the table to be with his girlfriend. A short time later, appellant,

Veliev, and appellant's father-in-law came back inside the restaurant, and

Zubrich heard sirens. Zubrich also observed five or six individuals

running inside the restaurant from the front door toward the back kitchen

door.

State v. Ambartsoumov, supra, at **1-6.

III. LEGAL STANDARD

The provisions of the Antiterrorism and Effective Death Penalty Act, Pub.L.

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104-132, 110 Stat. 1214 (AEDPA) govern the scope of this Court's review. See Penry v.

Johnson, 532 U.S. 782, 791 (2001); Wilson v. Parker, 515 F.3d 682, 691 (6th Cir. 2008). 

AEDPA imposes a "highly deferential standard for evaluating state-court rulings,"

Lindh v. Murphy, 521 U.S. 320, 333, n. 7 (1997), and "demands that state-court decisions

be given the benefit of the doubt," Woodford v. Visciotti, 537 U.S. 19, 24 (2002) (per

curiam). Renico v. Lett, 130 S.Ct. 1855, 1862 (2010)(footnote omitted) .

When the claims presented in a habeas corpus petition have been presented to

and decided by the state courts, a federal habeas court may not grant relief unless the

state court's decision was contrary to or an unreasonable application of clearly

established federal law, or based on an unreasonable determination of the facts in light

of the evidence that was presented. 28 U.S.C. §2254(d) provides:

An application for a writ of habeas corpus on behalf of a person in custody pursuant to

the judgment of a State court shall not be granted with respect to any claim that was

adjudicated on the merits in State court proceedings unless the adjudication of the

claim-

(1) resulted in a decision that was contrary to, or involved an

unreasonable application of, clearly established Federal law, as

determined by the Supreme Court of the United States; or

(2) resulted in a decision that was based on an unreasonable

determination of the facts in light of the evidence presented in the State

court proceeding

In applying this statute, the Supreme Court has held that "[t]he focus . . . is on

whether the state court's application of clearly established federal law is objectively

unreasonable . . . an unreasonable application is different from an incorrect one." Bell v.

Cone, 535 U.S. 685, 694 (2002). To obtain habeas corpus relief, a Petitioner must show the

state court's decision was "so lacking in justification that there was an error well

understood and comprehended in existing law beyond any possibility for fairminded

disagreement." Bobby v. Dixon, 132 S.Ct. 26, 27 (2011), quoting Harrington v. Richter, 562

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U.S. ––––, ––––, 131 S.Ct. 770, 786–87 (2011). This bar is "difficult to meet" because

"habeas corpus is a ‘guard against extreme malfunctions in the state criminal justice

systems,' not a substitute for ordinary error correction through appeal." Harrington v.

Richter, 131 S.Ct. at 786, quoting Jackson v. Virginia, 443 U.S. 307, 332, n. 5 (1979) (Stevens,

J., concurring in judgment)). In short, "[a] state court's determination that a claim lacks

merit precludes federal habeas relief so long as ‘fairminded jurists could disagree' on

the correctness of the state court's decision." Id., quoting Yarborough v. Alvarado, 541 U.S.

652, 664 (2004).

In situations where the state courts have not adjudicated the merits of a claim, a

federal habeas court should review a Petitioner's claim de novo. Howard v. Bouchard,

405 U.S. 459, 467 (6th Cir. 2005) ("Where the state court has not addressed or resolved

claims based on federal law, most courts, including this one, have held that the decision

is not an ‘adjudication on the merits.' Thus, a federal habeas court reviews such

unaddressed claims de novo."); McKenzie v. Smith, 326 F.3d 721, 727 (6th Cir.2003)

(reviewing habeas Petitioner's sufficiency-of-the-evidence claim de novo where the state

courts had considered the admissibility of the evidence but not the sufficiency of the

evidence); Pennington v. Jones, 2006 WL 322474, at *2 (E.D.Mich. Feb. 10, 2006)

(unpublished) (reviewing habeas Petitioner's claim de novo where he raised it for the

first time in his petition).

Questions of state law are not reviewable in a federal habeas action. See Estelle v.

McGuire, 502 U.S. 62, 67-68, 112 S.Ct. 475, 116 L.Ed.2d 385 (1991) ("We have stated many

times that federal habeas corpus relief does not lie for errors of state law. Today, we

reemphasize that it is not the province of a federal habeas court to reexamine state-court

determinations on state-law questions.") (citations and internal quotation marks

omitted). Petitioner instead must show that "he is in custody in violation of the

Constitution or laws or treaties of the United States." 28 U.S.C. § 2254(a); see also Estelle,

502 U.S. at 68, 112 S.Ct. 475 ("In conducting habeas review, a federal court is limited to

deciding whether a conviction violated the Constitution, laws, or treaties of the United

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States."). Accordingly, the Sixth Circuit has held that "[e]rrors by a state court in the

admission of evidence are not cognizable in habeas corpus proceedings unless they so

perniciously affect the prosecution of a criminal case as to deny the defendant the

fundamental right to a fair trial." Kelly v. Withrow, 25 F.3d 363, 370 (6th Cir.1994).

IV. MERITS REVIEW 

A. GROUNDS ONE, TWO AND FOUR

Petitioner presents three grounds for relief attacking various trial court

evidentiary rulings and claims that these rulings violated his right to present a complete

defense. All of these claims relate to the trial court’s exclusion of extrinsic or

impeachment evidence which Petitioner contends was necessary to refute the testimony

of two of the state’s primary witnesses, Mr. Safaryan, Petitioner’s alleged victim, and

Mr. Koulian, the alleged victim of Petitioner’s co-defendant . For example, in his first

ground Petitioner claims that the trial court erred by refusing to allow testimony from

former law enforcement officials regarding a task force criminal investigation . 

According to Petitioner, this testimony would have rebutted assertions by Mr. Safaryan

that Mr. Safaryan was an upstanding community leader who did not engage in illicit

activity. Defense counsel made a proffer of this proposed testimony on the record. Tr.

Vol IV pp. 186-190. Further, in his second ground, Petitioner contends that the trial

court erred in excluding the admission of an investigative report from a task force

initiated in 1999 or 2000 which Petitioner asserts would have demonstrated Mr.

Safaryan’s involvement in illicit business activities. Significant discussion surrounding

this report was had on the record following the direct examination of Mr. Safaryan. Tr.

Vol I, pp. 82-105. Additionally, in his third ground, Petitioner claims that the trial court

erred in refusing to permit him to put on extrinsic evidence regarding Mr. Koulian’s

motive for fleeing the country. Petitioner contends that the extrinsic evidence would

have demonstrated that Mr. Koulian fled the country because he was having financial

problems, not because he had been threatened by Petitioner’s family. Specifically,

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Petitioner sought to introduce testimony from the attorney and property manager from

Gahanna Creekside Investments, the company that leased Mr. Koulian space for his

jewelry store. Tr. Vol I, pp. 225-229. 

Certainly, to the extent these claims address issues of state evidentiary law, they

are not subject to collateral review. “Habeas review does not encompass state court

rulings on the admission of evidence unless there is a constitutional violation.”

Clemmons v. Sowders, 34 F.3d 352, 357 (6th Cir. 1994). Consequently, the Court’s review

is limited to whether Petitioner can demonstrate a violation of his federal constitutional

rights. Haliym v. Mitchell, 492 F.3d 680, 700 (6th Cir. 2007). Here, Petitioner has sought

to elevate his claims to a constitutional level by contending that the trial court’s

evidentiary rulings outlined above violated his right to present a complete defense

under the Sixth Amendment. 

The Constitution guarantees criminal defendants a meaningful opportunity to

present a complete defense. Crane v. Kentucky, 476 U.S. 683, 690 (1986). This right

ensures a defendant’s opportunity to present witnesses in his defense. See Taylor v.

Illinois, 484 U.S. 400, 409 (1988). However, “[t]he accused does not have an unfettered

right to offer testimony that is incompetent, privileged, or otherwise inadmissible under

standard rules of evidence.” Taylor, 484 U.S. at 410; Rockwell v. Yukins, 341 F.3d 507 (6th

Cir.2003). The Supreme Court has made it clear that the right to present a “complete”

defense is not an unlimited right to ride roughshod over reasonable evidentiary

restrictions. Rockwell, at 512.

Criminal defendants “must comply with established rules of procedure and

evidence designed to assure fairness and reliability in the ascertainment of guilt and

innocence.” United States v. Cruse, 59 Fed. Appx. 72, 79 (6th Cir. 2003) quoting Chambers

v. Mississippi, 410 U.S. 284, 302(1973). The application of “[s]uch rules do[es] not abridge

an accused's right to present a defense so long as they are not arbitrary or

disproportionate to the purposes they are designed to serve.” Cruse, 59 Fed. Appx. at

79–80. Whether a decision to exclude certain evidence or preclude questioning about a

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particular matter violates a criminal defendant's constitutional right to present a defense

“turns on the extent to which that evidence is so highly relevant that it becomes

indispensable to the success of the defense.”Crane, 476 U.S. at 691. Against such

considerations courts must balance the state's interests in enforcing the evidentiary rule

on which the exclusion was based. The question for the Court to consider is whether

Petitioner was afforded ‘a meaningful opportunity to present a complete defense.’ “

Crane, 476 U.S. at 690 quoting California v. Trombetta, 467 U.S. 479, 485 (1984). 

As the United States Supreme Court has recognized, “[o]nly rarely have we held

that the right to present a complete defense was violated by the exclusion of defense

evidence under a state rule of evidence.” Nevada v. Jackson, 133 S.Ct. 1990, 1992 (2013). 

Cases in which the Supreme Court has declared the exclusion of evidence

unconstitutional found that the exclusion “significantly undermined fundamental

elements of the defendant's defense.” United States v. Scheffer, 523 U.S. 303, 317 (1998).

The Tenth District Court of Appeals did not address any of these claims as a

violation of Petitioner's right to present a complete defense. Rather, the appellate court

analyzed Petitioner's claims as appealing the trial court's evidentiary rulings. This is so

even though, at least with respect to Claims One and Two, Petitioner cited federal law

and argued the issue in terms of various constitutional rights. With respect to Claim

Four, Petitioner’s assignment of error before the state appellate court was phrased in

terms of the Sixth and Fourteenth Amendments but his argument did not directly

address these principles. In analyzing Petitioner’s first ground, the appellate court

relied on Ohio Rule of Evidence 403 and found that the trial court was within its

discretion to exclude the testimony from various law enforcement officers as to Mr.

Safaryan’s alleged criminal activity to avoid conducting a “trial within a trial” as well as

to avoid confusion and delay. Similarly, with respect to Petitioner’s second ground, the

appellate court found that the trial court had not abused its discretion under Rule 403 in

excluding a nearly ten-year-old investigatory report. Finally, the appellate court found

the trial court properly exercised its discretion in excluding testimony on behalf of

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Gahanna Creekside Investments regarding Mr. Koulian under Rule 403 on grounds of

confusion. 

 Because the state court did not review the merits of Petitioner's constitutional

claims, AEDPA deference does not apply and this Court is required to conduct a de

novo review of questions of law and clear error review of factual determinations. 

Couturier v. Vasbinder, 385 Fed.Appx. 509, 516 (6th Cir. 2010); see also Ambrose v. Booker,

684 F.3d 638 (6th Cir. 2010).

 With respect to his first and second claims, Petitioner contended on appeal that

both the testimony of former law enforcement officers and a criminal investigation

report were necessary to rebut the testimony of Mr. Safaryan that he never engaged in

criminal activity. Petitioner also suggests that testimony about Mr. Safaryan’s illicit

business activity would have demonstrated that Petitioner had no motive to be jealous

of Mr. Safaryan’s business accomplishments. As Petitioner portrays it, at trial the

prosecution “touted” Mr. Safaryan’s business accomplishments, including his receipt of

a governor’s award. 

In reviewing the record, the Court concludes that the prosecution did not devote

much time to Mr. Safaryan’s business accomplishments in direct examination. Rather,

the prosecution asked a handful of questions about his accomplishments as background

information and only elicited testimony about a governor’s award in response to

defense counsel’s questioning on cross-examination. See Tr. Vol I, pp. 38, 115. Further,

on cross-examination, defense counsel was able to raise the specter of his involvement

in illicit activities by questioning Mr. Safaryan as to whether he had any involvement in

auto theft or flipping or falsifying VIN tags. See Tr. Vol. I, p. 111. 

As for the issue of Petitioner’s potential jealousy, Petitioner’s own testimony

demonstrates his view of both Mr. Safaryan and Mr. Safaryan’s business

accomplishments. For example, Petitioner testified that Mr. Safaryan operates a cash

business whereas Petitioner’s clients pay by check and he files a tax return, Petitioner

has relationships with insurance companies while Mr. Safaryan does not, Mr. Safaryan

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has many businesses and employees but that does not mean he is successful, he has no

respect for Mr. Safaryan, and he saved Mr. Safaryan’s life but Mr. Safaryan “spit in [his]

face.” Tr. Vol. IV pp. 118-120. 

With respect to Petitioner’s fourth claim regarding the exclusion of extrinsic

evidence of Mr. Koulian’s motives for fleeing the country, Petitioner sought to call the

attorney and property manager for Gahanna Creekside Investments, the management

company leasing the space for Mr. Koulian’s jewelry store. On appeal, Petitioner

contended that this testimony would have revealed that Mr. Koulian’s business was in

financial distress and would have refuted Mr. Koulian’s testimony that he had no

contact with anyone in Columbus. While this testimony was not allowed, Mr. Koulian

was cross-examined as to whether he portrayed his business entity as a limited liability

corporation rather than a sole proprietorship, whether he was behind in rental

payments prior to leaving the country, and whether his father removed any inventory

from the store after Mr. Koulian left Columbus. Tr. Vol. I, pp. 198, 203, 204-207.

Taking all above into account, the trial court’s rulings did not violate Petitioner’s

constitutional rights or deny him a fair trial. Petitioner had a meaningful opportunity to

present a defense and the Court is not persuaded that any of this extrinsic evidence

would have added to or refuted the testimony already in the record in any significant

way. Rather, as the trial court found, all of this evidence had the potential to create

confusion and delay by shifting the jury’s attention to collateral issues unrelated to the

events of the incident on May 17, 2008. 

Moreover, the exclusions of this extrinsic evidence were harmless under the strict

standard applicable in federal habeas cases. See Fleming v. Metrish, 556 F.3d 520, 536-37

(6th Cir. 2009) (right to present a defense is subject to a harmless error analysis). On

federal habeas review, the harmless-error standard is whether the violation “had

substantial and injurious effect or influence in determining the jury's verdict.” Brecht v.

Abrahamson, 507 U.S. 619 (1993). Habeas courts must apply this standard regardless of

the harmless-error standard applied by the state court or whether the state court

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undertook harmless error review at all. Fry v. Pliler, 551 U.S. 112, 121-22 (2007). As

explained above, defense counsel was afforded the opportunity to cross-examine Mr.

Safaryan and Mr. Koulian in such as way as to raise issues regarding their credibility ,

the prosecution made only limited references to Mr. Safaryan’s accomplishments, and 

Petitioner testified about his perception of Mr. Safaryan. As a result, the exclusion of

this evidence did not have a substantial and injurious effect or influence on the jury’s

verdict. Consequently, Petitioner is not entitled to habeas relief on these grounds. 

B. GROUND THREE

Petitioner's third claim relates to the investigative report which formed the basis

of his second claim. As Petitioner raises this claim here, his opportunity to prove that

the prosecution violated its duties under Brady v. Maryland, 373 U.S. 83 (1963), was

violated when the trial court quashed the subpoena fo the non-confidential report of the

criminal investigation which would have rebutted the State's characterizations of Mr.

Sarafyan's good character. This claim was raised on direct appeal as follows:

The trial court improperly quashed Appellant’s subpoena of a nonconfidential criminal investigation that rebutted the State’s

characterizations of an alleged victim’s good character, thereby violating

the Due Process clause of the Fourteenth Amendment and comparable

provisions of the Ohio Constitution.

Petitioner’s argument in his state appellate brief is set forth in its entirety as

follows:

The Due Process Clause of the Fourteenth Amendment to the

United States Constitution and comparable provisions of the Ohio

Constitution require the prosecuting attorney to disclose all evidence that

is “favorable” to the accused and “material” to issues of guilt or

punishment. Brady v. Maryland (1963), 373 U.S. 83, 87; United States v.

Agurs (1976), 427 U.S. 97; State v. Johnson (1988), 39 Ohio St.3d 48. Crim R.

16(A)(1)(f) sets forth similar mandates.

As to the first requirement under Brady, the term “favorable” is

defined broadly. Many forms of evidence qualify as exculpatory or

“favorable.” The Supreme Court has recognized that Brady encompasses

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evidence and information that may be used to impeach prosecution

witnesses. Giglio v. United States (1972), 405 U.S. 150, 154-55 (holding that

promises for favorable treatment and plea agreements must be disclosed); 

see also United States v. Bagley (1985), 473 U.S. 667, 682 (holding that

impeachment evidence as well as exculpatory evidence is subject to

disclosure and no distinction should be made with respect to the

constitutional disclosure mandates). Favorable evidence also includes

information that may not be favorable as it stands alone, but constitutes

the “tip of the iceberg” and would lead to additional favorable evidence:

“The duty of disclosure under Brady extend[s] not only to the

[prosecution’s] knowledge of concrete exculpatory information, but also

to facts from which other exculpatory information could be inferred, i.e.,

facts which could constitute the ‘tip of the iceberg’ of other Brady

evidence.” United States v. Burnside (N.D. Ill. 1993), 824 F.Supp. 1215, 1258

(quoting United States v. Shaffer (9th Cir. 1986), 789 F.2d 682, 690-91)). 

With respect to the second requirement under Brady, evidence is

“material” is there is a “reasonable probability that, had the evidence been

disclosed to the defense, the result of the proceeding would have been

different.” United States v. Bagley (1985), 473 U.S. 667, 682. A “reasonable

probability is a probability sufficient to undermine confidence in the

outcome.” Id. at 682. Materiality is not affected by the fact that evidence

is arguably cumulative: “the fact that other impeachment evidence was

available to defense counsel does not render additional impeachment

evidence immaterial.” United States v. Smith (1996), 77 F.3d 511, 515

(rejecting prosecuting attorney’s argument that additional impeachment

evidence was immaterial and cumulative due to existence of other

impeachment evidence).

Defense counsel suspected the existence of Brady material for

months. The documents sought by the subpoena were information sought

by defense counsel for months. The State continuously told counsel and

the court these documents did not exist. (Tr. Trn. Vo., I, Pg. 89-90). 

Through independent investigation and a subpoena, the defense found

this exculpatory information but was denied access to it. Even if this

information were not itself admissible in court, it was the “tip of the

iceberg” information recognized in Burnside. These documents may have

led to impeachment material. Therefore, the evidence should have been

disclosed under Brady. 

Petitioner seems to have rephrased his claim slightly for purposes of his habeas

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petition, tweaking it to suggest not that a Brady violation occurred, but that the trial

court foreclosed his opportunity to demonstrate that such a violation occurred. Despite

Petitioner’s characterization here that he was prevented from proving a Brady violation,

both the trial court and the state appellate court evaluated the investigative report

under the Brady standard and independently concluded, based on a review of the

material contained in the report, that no such violation occurred. 

As set forth in great detail by the state appellate court, the trial court addressed

the issue of the disclosure of the report as follows:

By way of background, on August 24, 2009, shortly prior to the start of

trial, the trial court addressed a motion to compel discovery and/or

exculpatory evidence filed by counsel for appellant. Counsel argued that

several of the state's witnesses "are heavily steeped in criminal activity,

including Nercessian who was in prison.". (Tr. Vol. I, 8). Counsel for

co-defendant Veliev joined in the motion. In response, the prosecution

argued there was no "[Brady] information" regarding Safaryan, Nercessian

or Koulian (Tr. Vol. I, 10). Also on that date, counsel for appellant filed a

subpoena with the Organized Crime Investigations Commission Task

Force (via the office of the Ohio Attorney General)

The next morning, August 25, 2009, the trial court addressed the filing of

the subpoena, at which time counsel for co-defendant Veliev joined in

appellant's subpoena motion. The court informed the parties: "The state's

lawyers have advised me that the office of the attorney general wants to

move to quash the subpoena on the argument that it is confidential,

investigative material, and that the prosecuting attorney of Franklin

County does not have access to this material.". (Tr. Vol.1, 14.)

Following the start of trial, the trial court, outside the presence of the

jurors, again addressed the issue of the subpoenaed documents. The

prosecutor noted on the record “After speaking with some people, it

seems as though the documents that have been requested are not

confidential, as this was a closed case." "(Tr. Vol. I, 86). The trial court

questioned Jerry Maloon, an assistant attorney general, who had

conducted a search for the requested documents. Maloon had located

several old administrative files, but stated that the task force "has been

over for at least five years."and that "[t]he vast majority -- I'm going to say

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99.99 percent of any and all documentation having to do with this task

force of Organized Crime has been destroyed per our record retention

policies." (Tr. Vol. I, 87-88) Maloon noted that, pursuant to a document

dated October 12, 1999, a task force had been initiated in 2000.

Maloon searched for the names in the subpoena (Safaryan, Koulian, and

Nercessian) and stated that "Nercessian is the subject of a Dispatch article,

January 17th, 2003, talking about a drug ring, and it looks like he got 30

months' incarceration at the federal level for that." (Tr. Vol. I, 88-89.) 

Maloon also found "the proposal from the CPD detective *** that was

dated October 12th, 1999." (Tr. Vol. I, 89) Maloon requested that the trial

court conduct an in camera review of the documents, stating: "There is a

great deal of sensitive information in the proposal." (Tr. Vol. I, 89) Maloon

further represented: In my review of that material *** [t]here's not one

shred of evidence in there as to Ty*** Safyran's criminal conduct. It's just

not there. I know what they're looking for." (TR. Vol. I, 100.)

The trial court conducted an in camera review of the documents. 

Following its review, the court noted that the documents included a

photocopy of an article from the Columbus Dispatch, dated January 17,

2003, entitled 'Drug Ring Operated at Club, 'that appears to reflect a

conviction in the federal district court, and Mr Nercessian is reflected in

this article as, quote, who is in jail and is expected to plead guilty to his

role in the ring next month, unquote" (Tr. Vol. I, 90-91.) The trial court

indicated it would allow defense counsel to have a copy of that article. 

The trial court noted that the “other document that I've been provided ***

is entitled summary investigation in to Russian émigré criminal activity in

the Columbus area prepared October 12, 1999, and then there's what I

understand from counsel to be a Columbus Police officer listed as the

author." (Tr. Vol. I, 91) The court related that the document contained

various unnumbered pages, of which the following subheadings are

included: Auto thefts, insurance frauds, body shop frauds, odometer

frauds, title frauds, other frauds, tax fraud. Exceptions, drug trafficking,

prostitution, organized crime connections." (Tr. Vol , 91) The court

indicated that the document also included a "two-page list entitled

Índividuals Involved'with some phone numbers and purported

information about their employment. There look to be 20 or so

individuals listed" (Tr. Vol. 1, 92) Further, the document included "four

pages of *** businesses involved." (Tr. Vol. I. 92). The last pages of the

document included a USA Today newspaper article dated August 24,

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1999, as well as a 1998 U.S. News and World Report cover story. "Dirty

Diamonds. How the FBI and some honest Moscow cops broke up a ring

that was looting tons of gold and gems from the Russian National

Treasury" (Tr. Vol. I, 92)

The trial court concluded: I do not believe that under [Brady] that any of

this material is subject to being turned over" (Tr. Vol. I, 93.) The trial court

made clear it was providing some of the information, and that “the only

thing I'm not giving you is the summary of investigation by police officers

10 years ago." (Tr. Vol. I, 95) Defense counsel argued, however, that the

investigative report should be turned over to refute Safaryan's suggestion

that he was a legitimate businessman. The trial court noted that the issue

of admissibility was "really a 403 issue for "me," and "that it's terribly

prejudicial and confuses the issues and does not have any focus on what

we're here to talk about." (Tr. Vol. I, 96) The court reiterated its view that

the documents did not contain "[Brady] material." (Tr. Vol. I, 99).

When addressing the issue of a Brady violation as raised by Petitioner on appeal,

the state appellate court stated as follows:

 Appellant further argues that the trial court's ruling may have prevented

the defense from obtaining Brady material. Appellant contends that the

court's ruling resulted in prejudice because (1) the documents may have

been useful as a tool to refute Safaryan's characterizations as a legitimate

businessman, and (2) the documents may have been the "tip of the

iceberg"for other relevant and exculpatory evidence.

In general, R.C. `149.43 establishes "a statutory right of access to public

records and the procedure for exercising that right." State v. Lawson, 11th

Dist. No. 2001-L-071, 2002-Ohio-5605, 30. Pursuant to that statute, a

"public record does not include confidential law enforcement

investigatory records.'" Id. quoting R.C. 149.43 (A)(1)(h). 

The state argues that the materials at issue were not withheld by the

prosecution, and that the trial court never specifically reached a

determination whether of not the records were confidential; rather, the

trial court conducted an independent review of the records and

determined that some of the information in the records was not

admissible, and that the records contained no Brady material. The record

supports the state's contention that the trial court did not make a

determination as to confidentiality of the documents under R.C. 149.43

but, instead, the court reviewed the materials in camera and concluded

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they did not contain Brady material and were not relevant to the issues

before the jury.

There are three components to a Brady violation. "[T]he evidence at issue

must be favorable to the accused, either because it is exculpatory, or

because it is impeaching, that evidence must have been suppressed by the

State, either willfully or inadvertently, and prejudice must have ensued. 

Strickler v. Greene (1999), 527 U.S. 263, 281-82, 119 S.Ct. 1936, 1948.

The sealed investigative task force report which the trial court reviewed is

part of the record before this court, and we have reviewed that record to

determine whether there is any support for appellant's assertion that a

Brady error may have occurred as a result of the failure to provide that

information. Having conducted our own independent review of the

report, we are satisfied that there is nothing contained in that report which

would have altered the jury verdicts, nor do we find error with the trial

court's determination that the report did not contain material required to

be disclosed under Brady. State v. Lawson (June 4, 1990 ), 12 Dist. No.

CA88-05-044 (appellate court’s own review of sealed materials found no

violation of Brady rule and no materials that could have affected outcome

of trial. 

To the extent that Petitioner raises a Brady claim, as the state courts explained,

there are three essential components of a Brady violation: (1) evidence at issue must be

favorable to the accused because it is exculpatory or impeaching; (2) evidence must

have been willfully or inadvertently suppressed by the State; and (3) prejudice ensued.

See Strickler v. Greene, 527 U.S. 263, 282–83 (1999). The duty to disclose information

under the Brady rule encompasses both exculpatory and impeachment evidence. See id.,

527 U.S. at 280; U.S. v. Bagley, 473 U.S. 667, 676 (1985); Kyles v. Whitley, 514 U.S. 419, 433

(1995); United States v. Mullins, 22 F.3d 1365, 1372 (6th Cir. 1994). Exculpatory evidence

is that which is favorable to the accused and “if disclosed and used effectively, [ ] may

make the difference between conviction and acquittal.” Bagley, 473 U.S. at 676. See also

United States v. Presser, 844 F.2d 1275, 1278 (6th Cir.1988). “Such evidence is material ‘if

there is a reasonable probability that, had the evidence been disclosed to the defense,

the result of the proceeding would have been different.’” Strickler, 527 U.S. at 280

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quoting Bagley, 473 U.S. 682. 

The information at issue here was not exculpatory in the sense that it

demonstrated Petitioner’s innocence. Rather, defense counsel sought the report to

impeach the credibility of Mr. Safaryan. While this information was sealed and made

part of the state court record, this sealed information is not part of the record before this

Court. Although the Court has requested that the record be supplemented to include

this sealed information, Respondent has been unable to locate it. However, the state

court record does contain a fairly thorough explanation of the information contained in

the investigative report. 

Significantly, Petitioner has not demonstrated the materiality of the information

contained in the report. That is, Petitioner has not shown a reasonable probability that

the result of the trial would have been different had the trial court provided Petitioner

access to the complete report. As set forth above, the state appellate court noted that the

age of the report and the failure of the report to result in any charges against Mr.

Safaryan supported its exclusion under state evidentiary rules. Further, the testimony

of the custodian of the report indicated that Mr. Safaryan was not a subject of the

investigation report. Additionally, as explained above in connection with Petitioner’s

other claims, Petitioner’s counsel was able to cross-examine Mr. Sarafyan regarding his

alleged involvement in illicit activities. 

Moreover, Petitioner’s suggestion that his access to the report could have led to

the discovery of Brady material is nothing more than speculation. “Allegations that are

purely speculative cannot support a Brady claim.” Stockman v. Berghuis, 2013 WL

6885121, *11 (E.D. Mich. Dec. 31, 2013) citing Burns v. Lafler, 328 F.Supp.2d 711, 724 (E.D.

Mich. 2004); see also United States v. Driscoll, 970 F.2d 1472, 1482 (6th Cir. 1992) abrogated

on other grounds by Hampton v. United States, 191 F.3d 695 (6th Cir. 1999). Further, “a

federal court’s conclusions that such inadmissible material would ‘lead’ to admissible,

exculpatory evidence cannot be based on ‘speculation with slight support.’” Wogenstahl

v. Mitchell, 668 F.3d 307, 325, n. 3 (6th Cir. 2012) quoting Wood v. Bartholomew, 516 U.S. 1, 8

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(1995). For all of these reasons, Petitioner cannot succeed on any Brady claim because he

has not demonstrated the materiality of the information in the report or how he was

prejudiced by its alleged suppression. 

To the extent that Petitioner, through his framing of his Brady claim here, is

trying to suggest a violation of his right to present a full defense, any such claim also

fails. As explained above in connection with his other claims, Petitioner had a

meaningful opportunity to present a defense and the Court is not persuaded that any

evidence regarding a ten-year old investigation not even directed to Mr. Safaryan

would have refuted his testimony in any significant way. Moreover, under a harmless

error analysis, the exclusion of this evidence cannot be found to have had a substantial

and injurious effect or influence on the jury’s verdict. Rather, as previously discussed,

defense counsel was afforded the opportunity to cross-examine Mr. Safaryan in such a

way as to raise issues regarding his credibility. Consequently, Petitioner’s fourth claim

fails on its merits.

C. GROUND FIVE

Petitioner's fifth claim is that his due process rights and his right to a fair trial

were violated when his post arrest silence was used as substantive evidence against him

at trial. Specifically, Petitioner argues that the state's questioning of Officers Ewing and

Graber elicited responses commenting on Petitioner's right to remain silent. 

Officer Ewing testified, in relevant part, as follows:

Q. ... So, officer, whenever – do you ride – you ride with the

defendant to the hospital. Does the defendant start speaking

to you at any point:

A. Oh, yes.

Q. And what sort of – if you recall, what sort of things is the

defendant saying?

A. Again, he was very, very angry at people at the club, outside

the club. Again, he very much talked. He was very much,

you know, didn't – I, of course, didn't ask him any questions,

basically because we're kind of taught not to do that.

...

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Q. Thank you. Did he ever – did he ever explain how he hurt

his hand?

A. No, I asked him a number of times even. You know, that's

the first thing the medics asked. That's the first thing that

the nurses and doctors asked when they came in to the ER

there at St. Ann's. He could never explain how he cut –

On cross-examination, Officer Ewing testified:

Q. So when [the prosecutor] was asking about did he tell you

how he cut his thumb, she was asking you basically about

what he didn't say or did say, correct? In the ambulance,

remember she asked about that, that whole line of questions

about his thumb and did he say how it was cut?

A. Oh, right.

Q. So you weren't even asking him any questions about that?

A. Oh, I asked him some questions. I just mean that I did not –

we're just told not to begin to interrogate people. I mean I'm

allowed to say if someone is bleeding on the scene and, you

know, hey, how did that happen.

Q. Right.

A. You know, but things like that. But ...

Q. Were you asking him specifically how he cut his thumb?

A. Yes, I asked him how – yes, I asked him a couple times, well,

how did that happen, you know. Because even again, the

doctors, the nurses, the medics they all asked the same

questions numerous times.

Q. And he said I don't know?

A. He could not give us an answer. I don't know if he said "I

don't know."

Q. What did he say?

A. He just didn't answer. He just did not answer the question

and went to a different subject and began, you know, talking

in different directions, sir, is the best way I can explain.

Officer Graber testified:

Q. Did he tell you anything about how he got that injury?

A. No, he didn't talk about the specific injury itself. He did

make remarks about the altercation. 

Q. And what were those remarks?

A. He stated that he was inside the club and was approached

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by two individuals. And he felt disrespected. And that they

started verbally attacking him.

Q. Let me back up. This conversation that you were having,

this was at the hospital?

A. Yes.

Q. And this is while you're waiting for doctors and nurses to

treat the defendant?

A. Right.

Q. Were you asking him any questions about the incident at

that time?

A. No, we didn't ask him any specific questions. He just started

talking while we were waiting.

Q. And how does your job differ from that of a detective?

A. Well, if we were doing an official interrogation, we would

have read his Miranda Rights and proceeded in a more

formal interview.

Following this testimony, Petitioner's counsel moved for a mistrial. Counsel

argued that the prosecutor's questioning regarding the injury to Petitioner's hand

permitted the jury to hear that Petitioner offered no explanation. Counsel contended

that this bit of testimony raised the issue of "post-arrest silence." 

The trial court denied the motion for a mistrial, concluding that Petitioner was

not being subjected to interrogation such that any violation of Doyle or Miranda could

have occurred. The trial court also found that Petitioner voluntarily offered statements

about the altercation. On appeal, the Tenth District agreed that Petitioner had not been

subject to a custodial interrogation regarding the circumstances of how he had been

injured and that he had spoken voluntarily. 

Doyle, relied upon by the state courts, establishes that a prosecutor may not

comment on a defendant's post-arrest silence as substantive evidence of guilt for the

crime. Doyle v. Ohio, 426 U.S. 610, 619 (1976). "[T]he use ... of [a defendant's] silence , at

the time of arrest and after receiving Miranda warnings, violate[s] the Due Process

Clause of the Fourteenth Amendment." Id. at 619. Doyle, however, applies only in the

context of post-Miranda silence. U.S. v. Peyton, 183 Fed.Appx. 539, 548 (6th Cir. 2006),

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citing Fletcher v. Weir, 455 U.S. 603, 607 (1982). Where the record is silent with respect to

whether a defendant received Miranda warnings, comments on a defendants' post-arrest

silence do not violate due process. United States v. Christian, 404 Fed.Appx. 989, 992-93

(6th Cir. 2010). Here, the testimony suggests that, although he was in custody,

Petitioner had not been given his Miranda warnings because neither officer believed

they were engaged in a custodial interrogation. Putting aside the issue of whether the

officers’ questioning satisfies the requirements of an interrogation (and again, the lower

courts concluded it did not), it appears that, assuming for this Court’s purposes that it

did, the situation in which Petitioner found himself was post-arrest, pre-Miranda. 

Consequently, this Court does not view the circumstances of this case as fitting squarely

within the bounds of Doyle.

However, assuming, as Petitioner contends, that his silence was used as

substantive evidence against him, Petitioner is not entitled to habeas relief on this claim. 

In this case, the state appellate court’s decision to uphold Petitioner’s conviction, even if 

 his post-arrest, pre-Miranda silence was used as substantive evidence of guilt, was not

contrary to or an unreasonable application of clearly established federal law. At the

time of Petitioner’s trial, the constitutionality of using a criminal defendant’s postarrest, pre-Miranda silence as substantive evidence had not been addressed by the

United States Supreme Court and disagreement existed among the federal circuits. Hall

v. Vasbinder, 563 F.3d 222 (6th Cir. 2009); Pearson v. Romanowski, 2013 WL 6801162 (E.D.

Mich. December 23, 2013). Consequently, the state appellate court’s decision to uphold

Petitioner’s conviction despite the alleged use of his post-arrest, pre-Miranda silence was

not contrary to or an unreasonable application of clearly established federal law and

Petitioner is not entitled to habeas relief. 

Finally, even assuming that the testimony elicited from Officers Graber and

Ewing violated Petitioner's Fifth Amendment right to remain silent, he still is not

entitled to relief. For purposes of determining whether federal habeas relief must be

granted to a state prisoner on the ground of federal constitutional error, the appropriate

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harmless error standard to apply is whether the error had a substantial and injurious

effect or influence in determining the jury's verdict. Brecht v. Abrahamson, 507 U.S. 619,

637 (1993). The Court finds that the isolated testimony, not referenced by the prosecutor

in closing argument nor revisited during any other portion of the trial in light of the

evidence of guilt, did not have a substantial and injurious influence in determining the

jury's verdict. Consequently, Petitioner is not entitled to habeas relief on his fifth claim. 

D. GROUND SIX

Petitioner's sixth ground for relief is that he was denied the effective assistance of

appellate counsel when his counsel failed to raise a number of issues on direct appeal. 

"The benchmark for judging any claim of ineffectiveness must be whether counsel's

conduct so undermined the proper functioning of the adversarial process that the trial

cannot be relied on as having produced a just result." Strickland v. Washington, 466 U.S.

668, 686 (1984). The court in Strickland announced the now familiar two-prong test to

determine if there was ineffective assistance of counsel, which would result in

reversible error:

First, the defendant must show that counsel's performance was

deficient. This requires showing that counsel made errors so serious that

counsel was not functioning as the ‘counsel’ guaranteed the defendant by

the Sixth Amendment. Second, the defendant must show that the

deficient performance prejudiced the defense. This requires showing that

counsel's errors were so serious as to deprive the defendant of a fair trial,

a trial whose result is reliable.

Strickland, 466 U.S. at 687.

"Judicial scrutiny of counsel's performance must be highly deferential."

Strickland, 466 U.S. at 689. "[A] court must indulge a strong presumption that counsel's

conduct falls within the wide range of reasonable professional assistance [ ... ]." Id. "The

defendant must show that there is a reasonable probability that, but for counsel's

unprofessional errors, the result of the proceeding would have been different. A

reasonable probability is a probability sufficient to undermine confidence in the

outcome." Id. at 694.

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The United States Supreme Court has recently cautioned federal habeas courts to

"guard against the danger of equating unreasonableness under Strickland with

unreasonableness under § 2254(d)." Harrington v. Richter, ––– U.S. ––––, ––––, 131 S.Ct.

770, 788, 178 L.Ed.2d 624 (2011). The Court observed that while " ‘[s]urmounting

Strickland's high bar is never an easy task [,]' ... [e]stablishing that a state court's

application of Strickland was unreasonable under § 2254(d) is all the more difficult." Id.

(quoting Padilla v. Kentucky, ––– U.S. ––––, ––––, 130 S.Ct. 1473, 1485, 176 L.Ed.2d 284

(2010)). The Court instructed that the standards created under Strickland and § 2254(d)

are both " ‘highly deferential,' and when the two apply in tandem, review is ‘doubly'

so." Id. (citations omitted). Thus, when a federal habeas court reviews a state court's

determination regarding an ineffective assistance of counsel claim, "[t]he question is not

whether counsel's actions were reasonable. The question is whether there is any

reasonable argument that counsel satisfied Strickland's deferential standard." Id. 

Claims of ineffective assistance of appellate counsel are governed by the

Strickland analysis. Haliym v. Mitchell, 492 F.3d 680, 694 (6th Cir.2007). "In order to

succeed on a claim of ineffective assistance of appellate counsel, a Petitioner must show

errors so serious that counsel was scarcely functioning as counsel at all and that those

errors undermine the reliability of the defendant's convictions." McMeans v. Brigano, 228

F.3d 674 (6th Cir. 2000), citing Strickland, 466 U.S. 668; and Rust v. Zent, 17 F.3d 155,

161-62 (6th Cir. 1994). Counsels' failure to raise an issue on appeal could only be

ineffective assistance if there is a reasonable probability that inclusion of the issue

would have changed the result of the appeal. McFarland v. Yukins, 356 F.3d 688 (6th Cir.

2004), citing Greer v. Mitchell, 264 F.3d 663, 676 (6th Cir .2001), cert. denied, 535 U.S. 940

(2002). "Counsel's performance is strongly presumed to be effective." McFarland, 356

F.3d at 710, quoting Scott v. Mitchell, 209 F.3d 854, 880 (6th Cir.2000)(citing Strickland ).

Petitioner identifies ten different issues which he claims counsel failed to raise on

appeal in violation of Strickland. With respect to claims 1, 5, 6, 9, and 10, respondent

argues that Petitioner was represented by the same attorney at trial and on direct appeal

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and that, under Ohio law, this counsel was not required, on appeal, to raise the issues

regarding his own ineffective assistance at trial. Respondent argues that this precludes

Petitioner from satisfying the first prong of the Strickland test because Petitioner cannot

demonstrate that his appellate counsel's performance was deficient as it relates to these

five claims. The Court agrees that Petitioner cannot satisfy the Strickland test but the

Court views respondent’s argument as more appropriately directed to the issue of

prejudice. 

As a general matter, a defendant who is convicted in Ohio of a criminal offense

has two avenues for attacking that conviction - direct appeal and collateral attack.

Claims appearing on the face of the record must be raised on direct appeal, or they will

be waived under Ohio's doctrine of res judicata. See State v. Perry, 10 Ohio St.2d 175, 226

N.E.2d 104 (1967). Issues which must be raised in a postconviction action pursuant to

R.C. § 2953.21 include claims which do not appear on the face of the record and claims

of ineffective assistance of trial counsel where the defendant was represented on direct

appeal by the same attorney who represented him at trial. State v. Cole, 2 Ohio St.3d 112,

443 N.E.2d 169 (1982). See Van Hook v. Anderson, 127 F.Supp.2d 899 (S.D. Ohio 2001);

Jenkins v. Sheets, 2009 WL 3151232 (S.D. Ohio 2009). 

 In light of this, Petitioner cannot claim that he was prejudiced by his appellate

counsel’s failure to raise issues on direct appeal relating to that same attorney’s alleged

shortcomings as trial counsel. Rather, under the circumstances of this case, the avenue

of collateral attack through a postconviction petition was available to Petitioner to

address the issues of his trial counsel’s alleged deficiencies. Under this scenario,

Petitioner cannot establish that a “reasonable probability” exists that the outcome of his

direct appeal would have been different. Consequently, Petitioner will not be granted

relief on grounds 1, 5, 6, 9 and 10 of his ineffective assistance of appellate counsel claim.

The second and third ground for Petitioner’s ineffective assistance of appellate

counsel claim relate to the issue of testimony permitted over objection. The second

ground asserts that appellate counsel should have raised the issue of trial court error in

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allowing the victim to testify over objection regarding why he was “cautious” of

Petitioner. The third ground is that appellate counsel should have raised the issue of

trial court error in allowing the victim’s cousin to testify as to why the victim was

“cautious” of the Petitioner. 

In reviewing his postconviction petition, the Tenth District Court of Appeals

concluded that both sets of testimony were properly admissible under Ohio Evid. R.

404(B) because the testimony provided background information about the nature of the

relationship between the victim and Petitioner and was proof of motive. Consequently,

applying the Strickland standard, the state court concluded that Petitioner failed to

demonstrate that his appellate counsel rendered ineffective assistance for failing to raise

these issues on direct appeal. 

The appellate court’s decision was neither an unreasonable application of federal

law nor based on an unreasonable determination of the facts. The state court

determined that Petitioner’s evidentiary claims were without merit. This Court is

bound by the state court’s interpretation of state law. See Brooks v. Anderson, 292 Fed.

App’x. 431, 437-38 (6th Cir. 2008) (“this Court has held that federal habeas courts must

defer to a state court's interpretation of its own rules of evidence and procedure when

assessing a habeas petition. It stands to reason that this is true even when the Petitioner

is not seeking habeas relief on the state court evidentiary determination at issue.”)

(citations and internal quotation marks omitted). See also Adams v. Smith, 280 F.Supp.2d

704, 721 (E.D.Mich.2003) (deferring to the state court's evidentiary determination that

contested testimony was not hearsay in rejecting a claim of ineffective assistance of

counsel for failure to object to the alleged hearsay). Accordingly, because Petitioner's

evidentiary claims are without merit, the Ohio Court of Appeals reasonably determined

that appellate counsel was not ineffective for failing to raise the claims on appeal. Davie

v. Mitchell, 547 F.3d 297, 312 (6th Cir. 2008); Willis v. Smith, 351 F.3d 741, 745 (6th Cir.

2003). Petitioner is therefore not entitled to habeas relief based on the ineffective

assistance of appellate counsel relating to these claims.

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Petitioner’s fourth basis for his ineffective assistance of appellate counsel claim is

that appellate counsel should have raised the issue of the trial court’s error in using the

wrong standard in deciding the discoverability of materials sought by the defense

under Crim. R. 16. As this claim was raised in his postconviction petition, Petitioner

argues that the trial court improperly applied the Brady standard to determine whether

the subpoenaed report was discoverable when the trial court should have considered

only whether the information sought was favorable and material either to guilt or

punishment. See Motion to Dismiss, Exhibit 22. 

In addressing this issue in Petitioner’s postconviction petition, the state appellate

court held that similar arguments were raised and rejected on direct appeal. Further,

the appellate court noted that it had, on direct appeal, reviewed the sealed record and

determined that there was no evidence of a Brady violation nor any information which

would have altered the jury’s verdict. Consequently, the appellate court concluded that

Petitioner could not demonstrate prejudice under Strickland. 

In reviewing the record, the Court notes that not only did the trial court evaluate

the evidence under Brady, but it also concluded that the report was “not material to the

issues in this case,” was not “germane” and would not “be a basis for legitimate cross

examination of any witness in this case.” Tr. Vol. I pp. 93-99. The appellate court

agreed. Because the appellate court acknowledged the breadth of the trial court’s

decision and upheld it on direct appeal, no reasonable probability existed that the result

of the appeal would have been different. Consequently, Petitioner has not established

that the appellate court’s decision involved an unreasonable application of Strickland. 

Petitioner’s seventh basis for his ineffective assistance of appellate counsel claim

is that appellate counsel should have raised the issue of the trial court’s error in

overruling the defense motion for a continuance in order to subpoena the victim to

question him about statements made to emergency room personnel. Respondent

argues that the trial court reasonably determined a continuance was not necessary

because defense counsel had the relevant medical report and could have cross-

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examined the victim as to it during the State’s case in chief. 

In addressing Petitioner’s postconviction petition, the state appellate court held

that this issue hinged upon the validity of admissibility of various statements the victim

had made which the trial court had barred. The state appellate court determined that

the trial court had not erred in barring the statements on grounds of prejudice and,

therefore, there was no probability of success had this issue been raised on appeal. The

appellate court also noted that the trial court had the discretion to bar the admission of

these statements as hearsay and that there was no evidence of inconsistency in the

statements. A “denial of a continuance rises to the level of a constitutional violation

only when there is an unreasoning and arbitrary insistence upon expeditiousness in the

face of [a] justifiable request for delay.” Burton v. Renico, 391 F.3d 764, 772 (6th Cir.

2004). Here, Petitioner has not demonstrated that the trial court’s denial of a

continuance was unreasonable given its evidentiary rulings that the statements were

prejudicial. Again, Petitioner has failed to demonstrate that the state appellate court’s

determination that Petitioner had not demonstrated prejudice is not contrary to or an

unreasonable application of federal law. 

Petitioner’s eighth basis for his ineffective assistance of appellate counsel claim is

that the trial court erred in refusing to allow the defense to play a video tape recording

of Petitioner’s statement to the police. As explained in the state appellate court’s

opinion addressing this issue as raised in Petitioner’s postconviction petition, Petitioner

sought to introduce the interview to rebut that state’s evidence that he did not explain

to the police how he received the cut to his hand. Here, respondent argues, among

other things, that Petitioner is not entitled to habeas relief because defense counsel was

able to refute any suggestion that Petitioner was not forthcoming about the cut to his

hand when questioning Petitioner on direct examination. 

A review of the transcript reveals the following testimony by Petitioner on direct

examination:

Q. And did you talk to [Detective Siniff] freely and answer all his questions?

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A. Yes, yes.

Q. Not a single question did you not answer, right? 

 A. I answered every question he asked me.

Q. He asked you how you cut your finger, didn’t he?

A. Yes.

Q. And you told him, didn’t you?

A. Yes.

...

Q. Did he ask you how you hurt your finger?

A. Yes, sir, he did.

Q. And you had nothing to hide, correct?

A. No, I didn’t.

Q. And did you explain to him the whole incident in detail?

A. Yes, sir, I did.

Tr. Vol. IV, pp. 77-78. 

The state appellate court, in addressing this issue in the postconviction

proceeding, noted with approval the various evidentiary grounds on which the trial

court had excluded the interview tape. However, the court also held, relying on the

testimony quoted above, that Petitioner was unable to demonstrate that the outcome of

the trial would have been different had the tape been allowed to be played. As the

appellate court found, Petitioner testified about his interview and stated that he

answered every question including the questions about how Petitioner had cut his

hand. This Court agrees that, based on Petitioner’s own testimony set forth above, the

outcome of the trial would not have been any different had the interview tape been

played. Consequently, the Court finds that this ground for relief lacks merit. 

V. THE MOTION FOR LEAVE TO AMEND

The proposed seventh ground for relief states as follows

Garri Ambartsoumov was denied effective assistance of counsel

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when his counsel failed to investigate and present testimonial evidence

that Alex Nercessian cut Arut Khoulian’s neck and Armen Stepanyan cut

Tigran Safaryan’s arm.

This ground for relief was included in the original petition. At the time of the

filing of the original complaint, Petitioner’s appeal relating to this ground was pending,

making this claim unexhausted. By order dated May 16, 2013, Petitioner was directed

to delete this unexhausted claim or this action would be dismissed without prejudice. 

On June 3, 2013, Petitioner filed an amended petition for a writ of habeas corpus which

did not contain this claim. Petitioner has filed a supplemental state court appendix

documenting his exhaustion of this proposed claim.

In response, respondent argues that the proposed amendment is futile. 

Respondent contends that the proposed amendment is barred by the statute of

limitations, having been required to be filed by March 22, 2013. According to the

respondent, the proposed amendment neither relates back to the first amendment nor is

it subject to equitable tolling. Further, respondent asserts that the claim is procedurally

defaulted and that Petitioner has failed to make an actual innocence showing to

overcome his procedural default. 

Petitioner has filed a one-page, eight-line reply. In this reply, Petitioner states

that this claim was pending before this Court on March 22, 2013, and that it relates back

to the filing of the original petition. Petitioner does not address the issue of procedural

default. 

A. LEGAL STANDARD

Fed.R.Civ.P. 15(a)(2) states that when a party is required to seek leave of court in

order to file an amended pleading, “[t]he court should freely give leave when justice so

requires." The United States Court of Appeals for the Sixth Circuit has spoken

extensively on this standard, relying upon the decisions of the United States Supreme

Court in Foman v. Davis, 371 U.S. 178 (1962) and Zenith Radio Corp. v. Hazeltine Research,

Inc., 401 U.S. 321 (1971), decisions which give substantial meaning to the phrase "when

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justice so requires." In Foman, the Court indicated that the rule is to be interpreted

liberally, and that in the absence of undue delay, bad faith, or dilatory motive on the

part of the party proposing an amendment, leave should be granted. In Zenith Radio

Corp., the Court indicated that mere delay, of itself, is not a reason to deny leave to

amend, but delay coupled with demonstrable prejudice either to the interests of the

opposing party or of the Court can justify such denial. 

 Expanding upon these decisions, the Court of Appeals has noted that:

 [i]n determining what constitutes prejudice, the

 court considers whether the assertion of the new

 claim or defense would: require the opponent to

 expend significant additional resources to conduct

 discovery and prepare for trial; significantly

 delay the resolution of the dispute; or prevent

 the plaintiff from bringing a timely action in

 another jurisdiction.

Phelps v. McClellan, 30 F.3d 658, 662-63 (6th Cir. 1994) (citing Tokio Marine & Fire

Insurance Co. v. Employers Insurance of Wausau, 786 F.2d 101, 103 (2d Cir. 1986)). See also

Moore v. City of Paducah, 790 F.2d 557 (6th Cir. 1986); Tefft v. Seward, 689 F.2d 637 (6th

Cir. 1982). Stated differently, deciding if any prejudice to the opposing party is

“undue” requires the Court to focus on, among other things, whether an amendment at

any stage of the litigation would make the case unduly complex and confusing, see

Duchon v. Cajon Co., 791 F.2d 43 (6th Cir. 1986) (per curiam), and to ask if the defending

party would have conducted the defense in a substantially different manner had the

amendment been tendered previously. General Electric Co. v. Sargent and Lundy, 916

F.2d 1119, 1130 (6th Cir. 1990); see also Davis v. Therm-O-Disc, Inc., 791 F. Supp. 693 (N.D.

Ohio 1992).

 The Court of Appeals has also identified a number of additional factors which the

District Court must take into account in determining whether to grant a motion for

leave to file an amended pleading. They include whether there has been a repeated

failure to cure deficiencies in the pleading, and whether the amendment itself would be

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an exercise in futility. Robinson v. Michigan Consolidated Gas Co., 918 F.2d 579 (6th

Cir.1990); Head v. Jellico Housing Authority, 870 F.2d 1117 (6th Cir.1989). The Court may

also consider whether the matters contained in the amended complaint could have been

advanced previously so that the disposition of the case would not have been disrupted

by a later, untimely amendment. Id. 

B. PROCEDURAL DEFAULT

In recognition of the equal obligation of the state courts to protect the

constitutional rights of criminal defendants, and in order to prevent needless friction

between the state and federal courts, a state criminal defendant with federal

constitutional claims is required to present those claims to the state courts for

consideration. 28 U.S.C. § 2254(b), (c). If he fails to do so, but still has an avenue open to

him by which he may present his claims, then his petition is subject to dismissal for

failure to exhaust state remedies. Id.; Anderson v. Harless, 459 U.S. 4, 6 (1982) (per

curiam); Picard v. Connor, 404 U.S. 270, 275–76 (1971). But if, because of a procedural

default, the Petitioner can no longer present his claims to the state courts, then he has

also waived those claims for purposes of federal habeas corpus review, unless he can

demonstrate both cause for the procedural default, as well as actual prejudice from the

alleged constitutional error. Murray v. Carrier, 477 U.S. 478, 485 (1986); Engle v. Isaac, 456

U.S. 107, 129 (1982); Wainwright v. Sykes, 433 U.S. 72, 87 (1977).

In the Sixth Circuit, a four-part analysis must be undertaken when the state

argues that a federal habeas claim is waived by the Petitioner's failure to observe a state

procedural rule. Maupin v. Smith, 785 F.2d 135, 138 (6th Cir. 1986). “First, the court must

determine that there is a state procedural rule that is applicable to the Petitioner's claim

and that the Petitioner failed to comply with the rule.” Id. Second, the Court must

determine whether the state courts actually enforced the state procedural sanction. Id. 

Third, it must be decided whether the state procedural forfeiture is an adequate and

independent state ground upon which the state can rely to foreclose review of a federal

constitutional claim. Id. Finally, if the Court has determined that a state procedural rule

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was not complied with, and that the rule was an adequate and independent state

ground, then the Petitioner must demonstrate that there was cause for him not to follow

the procedural rule, and that he was actually prejudiced by the alleged constitutional

error. Id. This “cause and prejudice” analysis applies to failures to raise or preserve

issues for review at the appellate level. Leroy v. Marshall, 757 F.2d 94 (6th Cir. 1985).

The procedural history of Petitioner’s proposed claim is as follows. On April 18,

2012, Petitioner filed a motion for leave to file a delayed motion for a new trial, alleging

he had discovered new evidence indicating that several individuals, other than himself

and his co-defendant, had committed the offenses. By entry dated September 12, 2012,

the trial court denied leave to file a delayed motion for new trial. In denying this

motion, the trial court concluded that Petitioner had failed to prove by clear and

convincing evidence that he had been unavoidably delayed from discovering, within

the 120-day time limit, the evidence upon which he was relying in support of his

motion. The state appellate court agreed by decision issued July 11, 2013. In reaching

its decision, the appellate court stated: 

{¶ 11} Crim.R. 33(B) states in part:

Motions for new trial on account of newly discovered evidence shall be

filed within one hundred twenty days after the day upon which the

verdict was rendered, or the decision of the court where trial by jury has

been waived. If it is made to appear by clear and convincing proof that the

defendant was unavoidably prevented from the discovery of the evidence

upon which he must rely, such motion shall be filed within seven days

from an order of the court finding that he was unavoidably prevented

from discovering the evidence within the one hundred twenty day period.

{¶ 12} Thus, “Crim.R. 33(B) provides a mechanism for allowing a new trial

motion based on newly discovered evidence to be reviewed by the trial

court beyond the prescribed one hundred twenty day time limit.” State v.

Shakoor, 7th Dist. No. 10 MA 64, 2010–Ohio–6386, ¶ 16. A defendant is to

file a motion for leave, and must “show by clear and convincing proof that

he has been unavoidably prevented from discovering, within the one

hundred twenty day time limit, the evidence that he is relying on to

support his motion for new trial.” Id. “[A] party is unavoidably prevented

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from filing a motion for new trial if the party had no knowledge of the

existence of the ground supporting the motion for new trial and could not

have learned of the existence of that ground within the time prescribed for

filing the motion for new trial in the exercise of reasonable diligence.”

State v. Walden, 19 Ohio App.3d 141, 145–46 (10th Dist.1984). Further,

“[m]ost courts * * * also require defendants to file a motion for leave

within a reasonable time after discovering the evidence.” State v. Peals, 6th

Dist. No. L–10–1035, 2010–Ohio–5893, ¶ 22, citing State v. Grinnell, 10th

Dist. No. 09AP–1048, 2010–Ohio–3028.

...

{14} In order to prevail on a motion for new trial based upon newly

discovered evidence, a defendant must show that the new evidence (1)

discloses a strong probability that it will change the result if a new trial is

granted, (2) has been discovered since the trial, (3) is such as could not in

the exercise of due diligence have been discovered before the trial, (4) is

material to the issues, (5) is not merely cumulative to former evidence,

and (6) does not merely impeach or contradict the former evidence. State

v. Petro, 148 Ohio St. 505 (1947). However, a trial court “may not * * *

‘consider the merits of the motion for a new trial until it makes a finding

of unavoidable delay.’ “ Peals at ¶ 21, quoting State v. Lanier, 2d Dist.

No.2009 CA 84, 2010–Ohio–2921, ¶ 17. Accordingly, “ ‘unless a trial court

has granted a defendant leave to file a delayed motion for new trial, the

motion for a new trial is not properly before the court.’ “ Peals at ¶ 21,

quoting State v. Clumm, 4th Dist. No. 08CA32, 2010–Ohio–342, ¶ 26.

{¶ 15} As noted under the facts, appellants submitted the affidavits of

three individuals who each averred that they were at the restaurant on the

night of the incident and observed individuals other than Veliev and

Ambartsoumov commit the offenses. Each of these witnesses stated they

were afraid to come forward for fear of retaliation, and one of the

witnesses stated that he told a police officer at the scene that he did not

observe anything that night.

{¶ 16} Appellants also submitted the affidavit of Palmer, trial counsel for

Veliev, in which Palmer stated he had reviewed the affidavits of Irina

Stevens, Artur Melkumov, and Irina Melkumov, and that “[a]t no time”

did these witnesses “tell me” they were outside the restaurant on May 17,

2008 during the incident, and that “[a]t no time did [they] tell me” their

version of how the stabbings took place. Palmer averred that “[t]he first

time I heard this information was when Ambartsoumov's present attorney

provided me with the affidavit in 2012.” The affidavit of Shamansky, trial

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counsel for Ambartsoumov, contained almost identical statements as

those set forth in Palmer's affidavit.

{¶ 17} The affidavit of Veliev states that he had reviewed the affidavits of

Irina Stevens, Artur Melkumov, and Irina Melkumov and that “[a]t no

time” did these witnesses “tell me” that they were outside the restaurant

on the evening of May 17, 2008, and “[a]t no time” did they relate to him

their version of the stabbings. According to Veliev, “[t]he first time I heard

this information was when my present attorney told me about it in 2011.”

Ambartsoumov submitted an almost identically worded affidavit.

{¶ 18} The trial court found that appellants had not demonstrated, by clear

and convincing evidence, that the defense was unavoidably prevented

from discovering the evidence of these three witnesses. The trial judge,

who presided over the 2009 trial of both appellants, noted that the crimes

arose from a spontaneous knife fight between patrons of the restaurant,

and that there were “[m]any people” in the vicinity of the restaurant that

evening; thus, the police officers arriving at the scene “faced a challenging

investigation, at night and in the rain, with a large number of potential

witnesses.”

{¶ 19} With respect to the affidavits submitted by the new witnesses, the

trial court noted that all three witnesses indicated in their affidavits that

they recognized both Veliev and Ambartsoumov before the stabbings;

however, “[n]one of the three witness affidavits explain when these

witnesses first came forward, or to whom,” and thus “[w]e are left to

guess how, when and why they lost their professed fear of reprisal.” The

court further noted that, while the affidavit of Ambartsoumov indicates he

learned of the “professed change of heart” of these witnesses in 2011,

“[n]one of the witnesses explain if they contacted him in 2011, or set out

any other facts about how they came forward,” nor do these witnesses

“say, one way or the other, whether they were interviewed by the original

trial lawyers (or their investigators) before trial in 2009.”

{¶ 20} In denying appellants' amended motion for leave to file a delayed

motion for new trial, the trial court held in relevant part:

Clear and convincing evidence has not been presented that the defense

was unavoidably prevented from discovering the evidence of these three

witnesses. No one disputes that these three were present at the scene of

the crimes. Apparently, no one disputes that they were known to the

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defense and even listed among a number of potential witnesses on the

state's witness disclosure. Yet, the affidavits provided by defense counsel[

] do not refer to their contact, or lack of contact with these people. Trial

counsel vigorously defended this case. They are in the best position to

supply evidence that they did not know of the witnesses if that were true.

They are in the best position to say now whether they, or an investigator

working for them, met with each of the three witnesses before trial. They

could tell us whether the witnesses told them a different story, or simply

refused affirmative requests to meet for an interview. There is no such

information provided. No suggestion comes from either attorney Palmer

or attorney Shamansky that any of the three of them hid, or placed

themselves beyond the range of a reasonable investigation by the defense,

much less beyond the Subpoena power. That being true, no clear and

convincing evidence has been presented that the defense was

“unavoidably prevented” from using the three witnesses back in 2009.

It merits mention that unlike most single-defendant cases this trial had

two co-defendants with privately retained counsel. Both mounted a

spirited, coordinated defense. In most respects their efforts appeared

closely aligned, and both defendants potentially would have profited if

the evidence tendered now had been heard. In such a situation, there is

even more reason to expect something more than has been obliquely

suggested here in the lawyers' affidavits. The court is entitled to learn

more about their joint investigation of witnesses together with their joint

trial preparation and strategy when faced with a motion like this one. The

court is asked to accept that they missed three potentially helpful

witnesses which, given the court's familiarity with the work of defense

counsel on these two cases, simply seems implausible. Both defendants

were similarly motivated to leave no good lead unexplored. As the court

recalls, both men remained out on bond through trial and might

themselves have assisted counsel. So, simply alleging years later—without

true backup evidence submitted under oath—that defense counsel utterly

failed to follow up with these alleged eye witnesses is not readily to be

accepted. The “clear and convincing” standard demands more.

(Footnote omitted.)

{¶ 21} Upon review, we agree with the trial court that appellants have not

shown, by clear and convincing evidence, that they were unavoidably

prevented from discovering, within the 120–day time limit, the evidence

they are relying upon to support their motions. With respect to the three

new witnesses, the state argued before the trial court that these witnesses

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were on the state's witness list and known to the defense at the time of

trial and that most of the witnesses were interviewed by police.

{¶ 22} In State v. Wilson, 10th Dist. No. 93AP–732 (Nov. 2, 1993), this court

affirmed the trial court's dismissal of a defendant's motion for new trial in

a case in which the defendant and several potential witnesses knew each

other prior to trial. As to one of the witnesses, this court noted that the

record contained no evidence of how this individual's potential as a

witness, “however minimal, was ultimately discovered.” As to a second

witness, this court noted that the statement of this witness was “truly

newly discovered evidence,” and could not have been discovered within

120 days of the trial, but the record failed to indicate “whether or not

anyone attempted to interview” him prior to trial. In holding that the

defense failed to present clear and convincing proof that defendant was

unavoidably prevented from discovering the evidence at issue, this court

observed that “[i]f counsel, for whatever reason, cannot effectively

communicate with the potential witnesses or cannot devote sufficient time

to investigate personally, then the services of a private investigator can be

retained.” Other Ohio courts have similarly held that a defendant was not

“unavoidably prevented from discovering the evidence” where the

witnesses were known to the defense prior to trial. See, e.g., State v. Saban,

8th Dist. No. 73647 (Mar. 18, 1999); State v. Nicholson, 8th Dist. No. 70916

(May 1, 1997).

{¶ 23} Federal case law establishes that “if a defendant is aware of the

evidence at the time of trial, then it is not newly discovered evidence

under Rule 33.” United States v. Sims, 72 Fed.Appx. 249, 252 (6th Cir.2003).

Further, “where a witness who has indicated to the defendant * * * an

unwillingness to testify truthfully at trial * * * but later supplies an

affidavit exonerating the defendant of the offense, the affidavit is merely

newly available evidence, but it is not newly discovered evidence.”

(Emphasis sic.) Id. Thus, “a post-trial affidavit exonerating the defendant

that was provided by a witness who could have been called at trial, but

was not, can never be considered newly discovered evidence under Rule

33.” Id., citing United States v. Turns, 198 F.3d 584 (6th Cir. 2000).

{¶ 24} In the present case, the affidavits of all three witnesses indicate they

knew both Ambartsoumov and Veliev at the time of the incident.

According to the affidavit of Irina Stevens, she was seated at the same

table with appellants on the night of the events at issue. The trial court

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noted no apparent dispute that these individuals were “known to the

defense and even listed among a number of potential witnesses on the

state's witness disclosure.” The affidavit of one of the witnesses, Artur

Melkumov, indicates he spoke with police during the investigation on the

night of the incident. Further, it is clear from the trial testimony that Irina

Stevens was known at the time of trial. Specifically, one of the trial

witnesses, Dimitri Zubrick, testified that his girlfriend, Irina Stevens, went

to the restaurant with him. According to Zubrick's testimony, his

girlfriend Stevens “was never outside.” (Tr. 153.) Zubrick also noted at

trial that he spoke with a defense investigator prior to trial.

{¶ 25} Ohio courts have held that affidavits filed outside of the 120–day

time limit of Crim.R. 33 that fail to offer a sufficient explanation as to why

evidence could not have been obtained sooner are inadequate to show that

the movant was unavoidably prevented from obtaining the evidence

within the prescribed time. Shakoor at ¶ 21. See also State v. Golden, 10th

Dist. No. 09AP–1004, 2010–Ohio–4438, ¶ 19 (where appellant failed to

explain the investigative actions taken or why he was unavoidably

prevented from discovering potential witnesses, trial court did not abuse

its discretion in determining appellant failed to demonstrate by clear and

convincing proof that he was unavoidably prevented from discovering the

witness or her statement within the time limitation of Crim.R. 33(B)); State

v. Dawson, 9th Dist. No. 19179 (July 14, 1999) (noting, in case affirming

trial court's denial of leave to file motion for new trial, that affidavits

submitted failed to give specific timeline of defendant's attempts to gain

exculpatory testimony or provide any reason why defendant could not

have discovered the evidence before the 120–day period had elapsed);

State v. Wilson, 7th Dist. No. 11 MA 92, 2012–Ohio–1505, ¶ 57 (“the

affidavits and the motion for leave do not contain enough information to

conclude that Wilson was unavoidably prevented from discovering the

evidence within the prescribed period”).

...

{¶ 30} Appellants in this case bore the burden of establishing, by clear and

convincing evidence, that they were unavoidably prevented from

discovering these witnesses earlier. Nicholson. We agree with the trial

court that appellants have not shown, through the affidavits submitted,

that the new witnesses were unknown or “placed beyond the range of a

reasonable investigation by the defense, much less beyond the Subpoena

power.” Upon review, appellants failed to prove by clear and convincing

evidence that they were unavoidably prevented from discovering, within

the prescribed time period, the evidence they are relying on to support

their motions. Accordingly, the trial court did not abuse its discretion in

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denying appellants' amended motions for leave to file a delayed motion

for new trial.

State v. Ambartsoumov , 2013 WL 3488186 (Ohio App. 10 Dist. July 11,2013).

Based on the above, there is no question that Petitioner failed to comply with a

state procedural rule. Further, as set forth at length by the state appellate court, the

state court enforced the procedural sanction. Consequently, the Court finds the first

two parts of the Maupin test to be satisfied. Third, the untimeliness of a motion for a

new trial is an adequate and independent state ground on which the state may rely to

foreclose habeas review. See Minor v. Warden, Lebanon Correctional Inst., 2014 WL

1276582, *14 (S.D. Ohio March 27, 2014). Because Petitioner has not addressed the issue

of procedural default, he has not made any showing of either cause to excuse the

default or actual prejudice. Similarly, Petitioner has not come forward with any

evidence demonstrating his actual innocence. Consequently, it will be recommended

that the motion for leave to amend be denied on grounds of procedural default of the

proposed claim.

VI. RECOMMENDED DISPOSITION

For the foregoing reasons, the Court RECOMMENDS that the petition for a writ

of habeas corpus be DISMISSED. Further, the Court recommends that the motion for

leave to amend be denied.

PROCEDURE ON OBJECTIONS

 If any party objects to this Report and Recommendation, that party may, within

fourteen days of the date of this Report, file and serve on all parties written objections to

those specific proposed findings or recommendations to which objection is made,

together with supporting authority for the objection(s). A judge of this Court shall

make a de novo determination of those portions of the report or specified proposed

findings or recommendations to which objection is made. Upon proper objections, a

judge of this Court may accept, reject, or modify, in whole or in part, the findings or

recommendations made herein, may receive further evidence or may recommit this matter to the

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magistrate judge with instructions. 28 U.S.C. §636(b)(1).

 The parties are specifically advised that failure to object to the Report and

Recommendation will result in a waiver of the right to have the district judge review

the Report and Recommendation de novo, and also operates as a waiver of the right to

appeal the decision of the District Court adopting the Report and Recommendation. See

Thomas v. Arn, 474 U.S. 140 (1985); United States v. Walters, 638 F.2d 947 (6th Cir.1981).

 /s/ Terence P. Kemp 

 United States Magistrate Judge

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